On Thursday, the Supreme Court considered whether to take the case of a South Dakota death row prisoner who maintains he was sentenced to death because of anti-gay bias on the jury.

Charles Rhines, convicted of the 1992 murder of Donnivan Schaeffer during a robbery, was sentenced to death in 1993. While the jurors deliberated whether to sentence him to death or life without parole, they sent the trial judge questions asking would Rhines “be jailed alone or will he have a cellmate,” and “Will he be able to create a group of followers or admirers,” and whether he would “be allowed to discuss describe, or brag about his crime to other inmates, especially new and or young men jailed for lesser crimes.”

The questions may seem odd, but there is strong evidence that they were asked because Rhines is gay and, according to juror statements, “There was lots of discussion of homosexuality” in the jury room and “a lot of disgust.” Another juror said that sentencing him to life without parole would mean “We’d be sending him where he wants to go.”

However, this evidence wasn’t discovered until after Rhines’ appeals had been rejected by federal courts. It is now up to the Supreme Court to send a message that bias of any kind, whether it be racist, sexist, or anti-gay is unconstitutional. As Chief Justice John Roberts said in his majority opinion in Buck v. Davis (2017),  in which the Court reversed Duane Buck’s death sentence because it was imposed at least partly because he is black, “Our criminal law punishes people for what they do, not who they are. That it concerned race amplifies the problem.” The fact that in this case it concerned sexual identity amplifies it even further.

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