Ladies and Gentlemen of the Jury: The Role of the “Child Care Exception” in the Development of the Right of Women to Serve as Jurors

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In its recent opinion in State v. Schmeiderer, 2009 WL 961787 (Tenn.Crim.App. 2009), the Court of Criminal Appeals of Tennessee rejected a convicted murder’s appeal, in which he had claimed, inter alia, that “the trial court systematically excluded women from the jury venire.”  The court rejected the appeal despite the fact that eleven of the thirteen jurors whom the trial court excused under Tennessee’s undue hardship statute  were female. And it did so because it bought the State’s argument that “many of the female jurors were excused because they were solely responsible for the care of their small children, which has been found by other courts to be a valid reason for being excused.”    A review of case law and scholarship reveals both that this argument is correct and the interesting role that the argument played in women finally getting the right to sit as jurors  

First of all, the Court of Criminal Appeals of Tennessee was right that many courts have found that there is no constitutional problem with women being disproportionately excused from jury venires based upon their disproportionate child care duties as is evident from the following string cite in the court’s opinion:

See  Bratcher v. Commonwealth,  151 S.W.3d 322, 345-46 (Ky.2004) (holding that a trial court’s application of the hardship provision of the Kentucky statute to excuse mothers with no alternative methods of childcare was perhaps an inevitable result of a hardship exemption); People v. Olson, 377 N.E.2d 371, 376 (Ill.App. 1978)  (holding trial court’s excusal of women who were unable to make arrangements for the care of their children was not unreasonable); State v. Taylor, 771 S.W.2d 387, 400 (Tenn. 1989)  (holding that proof did not show a systematic exclusion of women in the grand jury selection process where the trial court stated that there were no automatic exemptions granted women but that women would frequently offer compelling reasons for excusal, namely the care of young children);  see also Johnson,  307 F.Supp.2d at 387  (holding,”Trial courts have long recognized that jurors with young children should be excused for cause when they are unable to obtain child-care for their children”); McArthur v. State, 351 So.2d 972, 975 (Fla. 1977)  (upholding the constitutionality of a Florida statute excusing from jury service pregnant women and women with small children);  State v. George,  476 S.W.2d 903, 906-07 (S.C.1996) (holding that statutory excusals of three women with young children from jury service pursuant to”child care”exemption did not violate defendant’s right to a venire pool reflecting fair cross-section of a community).        

The main reason that these courts could reach these conclusions is the opinion in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 143 & n.16 (1994), in which the  Supreme Court found that

Even [peremptory] strikes based on characteristics that are disproportionately associated with one gender could be appropriate, absent a showing of pretext….For example, challenging all persons who have had military experience would disproportionately affect men at this time, while challenging all persons employed as nurses would disproportionately affect women. Without a showing of pretext, however, these challenges may well not be unconstitutional, since they are not gender or  race based.

So, that’s the present, and Justice and Juror, 20 Ga. L. Rev. 257 (1986), by Wisconsin Supreme Court Chief Justice Shirley S. Abrahamson  fills us in on the past. I would recommend the entire article to readers, but here are some of the highlights (and lowlights) of the history of female jurors in this country:

-In America women were disqualified as jurors by state law until the end of the nineteenth century;

-For a short time, from March 1870 to September 1871, the Territory of Wyoming provided that women could serve on juries;

-Washington Territory had women jurors during 1884,  and in 1898 Utah became the first state to permit women to serve on juries.

-When women attained suffrage upon ratification of the nineteenth amendment in 1920, they automatically became eligible to serve on juries in Wisconsin  and in several other states (but not in most) by virtue of statutes providing that all legal voters were qualified to be jurors.

-Not until 1946 did the United States Supreme Court cast doubt on the validity of excluding women from juries….[i]n Ballard v. United States;

-As late as 1957 four states-Alabama, Mississippi, South Carolina, and West Virginia-prohibited women from serving on juries. In 1966 the last of the states-Alabama-permitted women to serve on juries;

-While in the late 1960′s women were no longer excluded from the jury pool by statute, about half the states treated men and women differently with regard to exemption from jury duty. States granting special treatment to women did so by requiring them to volunteer for jury duty if they wished to serve (that is, opting in for jury duty) or by permitting them to be excused automatically on their request if they wished not to serve (that is, opting out of jury duty).

-In Duren v. Missouri,  a Missouri statute allowed an automatic exemption for any woman requesting not to serve, with the result that women made up less than sixteen percent of the Missouri jury venires.  While recognizing the state’s interest in ensuring that family members responsible for the care of children could remain at home, the Supreme Court concluded that this interest did not justify the Missouri statute.  The Court advised the states that they might more precisely tailor an exemption for the child care provider (whom the Court viewed as a woman) that would survive constitutional challenge.

Duren  thus begat the line of cases mentioned above which supported the court’s conclusion in Schmeiderer. But  Duren  itself was seemingly born out of a debate that occurred earlier in the twentieth century as women were first being given the right to serve as jurors. According to  Abrahamson, many opposed that right, with “[o]ne of the major concerns of the opponents of jury service for women [being] the envisioned neglect of home and children.” However, a response to this argument was that

the jury question will bring out more clearly than the law has ever appreciated the truth that motherhood is an occupation, one of the most engrossing occupations in the world. The mother must evidently be classed with those  men who, like locomotive engineers, do work from which they cannot be spared for any long period of time.

I’m not sure that women being given the right to serve on, and be excluded from, juries has had this effect, but it seems that Mother’s Day is the ideal day to bring the truth to the fore.

-Colin Miller

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One Response to Ladies and Gentlemen of the Jury: The Role of the “Child Care Exception” in the Development of the Right of Women to Serve as Jurors

  1. Ann Bartow says:

    Another outstanding post, Colin. Thanks.

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