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Topics In the News
Ninth Circuit Court of Appeals Rules Sexual Orientation Entitled to Heightened Scrutiny
Posted by: Claude J. Summers on 01/21/14
Last updated on: 01/21/14
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In a closely watched case involving whether a potential juror may be struck on the basis of his or her sexual orientation, the Ninth Circuit Court of Appeals not only gave a resounding "no" to the particular question, but also issued a broad ruling establishing that "heightened scrutiny" must be applied to all equal protection claims involving sexual orientation. Although the decision comes in a case involving jury selection, it has sweeping ramifications for all cases involving sexual orientation, including those cases dealing with marriage equality.

In the decision written by Judge Stephen Reinhardt on behalf of a unanimous three-judge panel, the Ninth Circuit Court of Appeals declared that the Supreme Court's landmark ruling in Windsor, the case that invalidated the Defense of Marriage Act, required that discrimination based on sexual orientation is subject to heightened scrutiny rather than "rational basis," which previously had been the standard of review.

Acknowledging that in Windsor, the Supreme Court did not announce that it was using the "heightened scrutiny" standard, Judge Reinhardt nevertheless asserted that "Windsor review is not rational basis review. In its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review. In other words, Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation."

Thus, the Court explained, "when state action discriminates on the basis of sexual orientation," a court "must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status."

Applying heightened scrutiny means that when equal protection claims are made, the Court must carefully review challenged actions rather than simply accept a plausible or rational explanation offered by a legislature or other defendant.

Under that heightened scrutiny standard, the Court concluded that the "Batson rule," which prohibits striking potential jurors on the basis of race or gender, also applies to sexual orientation.

In the case under consideration, the Court found that an attorney for Abbott Laboratories peremptorily challenged a juror simply because he was gay in a lawsuit brought by SmithKline Beecham over a licensing agreement relating to HIV medication.

The decision declared that "Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation's most cherished rites and rituals. They tell the individual who has been struck, the litigants, other members of the venire, and the public that our judicial system treats gays and lesbians differently. They deprive individuals of the opportunity to participate in perfecting democracy and guarding our ideals of justice on account of a characteristic that has nothing to do with their fitness to serve."

In the San Jose Mercury-News, Howard Mintz describes the decision as providing "sweeping new legal protections to gays and lesbians." He says that the Court of Appeals "broke new legal ground by concluding that sexual orientation deserves the same strong anti-discrimination protections as other categories such as race."

Chris Geidner in BuzzFeed also stressed that the ruling may have broad implications for equal rights.

In a press release, the National Center for Lesbian Rights said that "Today's ruling by the Ninth Circuit, which covers much of the western United States, is a major advance for equality for lesbian, gay, bisexual, and transgender people. The court recognized that laws that treat persons as second-class citizens based on sexual orientation are anathema to the U.S. Constitution's guarantee of equality. Today's ruling will make it exceedingly difficult for states to justify laws that discriminate based on sexual orientation."

Lambda Legal's legal director Jon Davidson said, "This landmark ruling establishes what we have long argued--that classifications based upon sexual orientation deserve heightened judicial scrutiny. The Court here properly found that, when a juror is excused based on the juror's sexual orientation, that harms the juror, the litigants, and the judicial system itself. As with race- and sex-based peremptory challenges, allowing prospective jurors to be precluded from serving because of their sexual orientation serves no purpose other than to perpetuate and reinforce invidious discrimination. The court ruled that such action directly contravenes the Equal Protection Clause of the U.S. Constitution, and should not be permitted."

Davidson added, "This ruling is sure to impact other cases pending in the Ninth Circuit and elsewhere, including Lambda Legal's challenge to Nevada's ban on same-sex couples marrying, Sevcik v. Sandoval, which is now pending before the Ninth Circuit."

The decision may be read here.

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