This is one of those "diary me" issues that I couldn't just let sit. Because I'm not a lawyer I'm going to have to cover it as best I can and I hope anyone who comments here will do so with that understanding.
This morning the Ninth Circuit Court of Appeals issued a ruling (the ruling is linked at the bottom of the article; I couldn't find a direct link to the ruling itself) stating that a potential juror cannot be excluded based on his or her sexual orientation. The important factor is that the court based its ruling that classifications based on sexual orientation are subject to some form of heightened scrutiny. What is even more signal is that that determination was itself predicated on the Windsor case and further that it was based not on what that ruling said but what it did.
This case will apparently, in the future, be referred to as GSK vs Abbott, where "GSK" stands for Glaxo SmithKline and "Abbott" refers to Abbott Laboratories. I'll continue beyond the fold...
The case itself is one that at a superficial level had little or nothing to do with sexual orientation. It involved an anti-trust lawsuit against Abbott Laboratories, which manufactures several HIV medications. The claim was that Abbott was guilty of manipulating the prices of medications in its favor. The original court ruled partly in favor of the plaintiff and partly in favor of Abbott. An appeal was filed based on Abbott's counsel having struck one of the potential jurors because he was gay. Counsel for either side are permitted to remove up to three potential jurors from consideration for almost but not quite any reason (these are called "peremptory strikes"). Among the impermissible reasons are those having to do with equal protection. For example, while a potential juror can be challenged for any reason, he or she cannot be challenged specifically due to his or her race or gender. Some states, including California, already have laws stating that sexual orientation may not be used to challenge a juror but as far as I know there have previously been no such restrictions at the federal level.
In questioning the prospective juror, the individual (a man) was asked a number of questions...the usual...what do you do? and so on...in the course of the questions it came about that he had a "partner" who was also male. The defendant's counsel asked a few superficial questions and then asked that the juror be removed from consideration. It's permissible not to have a reason, but if the court asks the attorney requesting removal of the potential juror what the reasoning was, and the attorney (not the judge; typo fixed) either does not respond or obfuscates, it provides a reason to presume that the juror is being challenged for reasons that are not permissible. The appeals court faulted the trial judge for failing to apply the existing standard correctly. The trial judge indicated first that equal protection concerns do not apply to jury selection in civil cases when in fact they do. She also indicated that equal protections do not apply to jury selection when only a single member of a protected class is challenged, when that isn't so, particularly where only a single member of that class is present within the pool of potential jurors.
Given that we're currently seeing appeals proceed in challenges to marriage equality cases in both Utah and Oklahoma, and that, in general, the only matters that can come up relate to whether the trial judge ruled properly on the basis of established procedures (that's a rather inexact paraphrase but it's the best I can come up with) it's interesting to see how that sort of thing comes into play. In this particular case the judge didn't follow procedures which undermines her decision. In the marriage equality cases that's unlikely to be the case but at least we now have a point of reference.
When Abbott's counsel was questioned, he provided reasons that were clearly not based in fact, beginning with the statement that he "didn't know the prospective juror was gay" even though the individual made repeated references to his male partner when he was being questioned by the plaintiffs' counsel. There were other reasons provided that didn't accord with the facts.
...Abbott attempts to offer several neutral reasons for the strike in its brief on appeal to our court, but these reasons are also belied by the record. [from a cited precedent:] "([I]f a review of the record undermines...many of the proffered reasons, the reasons may be deemed a pretext for racial discrimination.)" Ordinarily it does not matter what reasons the striking party might have offered because "[w]hat matters is the real reason [the juror was] stricken," [citation omitted] (emphasis in the original): that is, the reason offered at the time of the strike, if true. Here Abbott offered no reasons for the strike at the voir dire but we know from the reasons offered on appeal after full deliberation by respected and able counsel that even the best explanations that counsel could have offered are pretextual.
So regardless of the reasons offered on appeal it became clear to the appeals court that the juror was struck because he was gay. And the trial judge should have prevented that from happening.
Batson is the name of the Supreme Court case in which it was ruled that equal protection concerns apply to the privilege of peremptory strikes. So the appeal's court's job here was to determine if sexual orientation would be an impermissible use of the peremptory strike. The appeals court has determined that indeed sexual orientation is covered by application of Batson.
In general, as the court noted, in most other federal cases where discrimination based on sexual orientation was at issue, even other Ninth Circuit cases, only rational basis was applied. The ruling goes on to cite a number of cases, some of them well-known, others less so, from High Tech Gays vs Defense Industrial Security Clearance (a 1990 Ninth Circuit ruling that upheld discrimination based on sexual orientation, based in part on the now-discredited Bowers vs Hardwick) up to and including Lawrence vs Texas (2003) and Witt vs Department of the Air Force (2008). In each such case, even the favorable ones, only rational basis was applied to the equal protection portions of the rulings. The court finds that that is no longer permissible.
Here is the crucial part:
Just as Lawrence omitted any explicit declaration of its level of scrutiny with respect to due process claims regarding sexual orientation, so does Windsor fail to declare what level of scrutiny it applies with respect to such equal protection claims. Nevertheless we have been told how to resolve the question. [I've omitted a citation here] When the Supreme Court has refrained from identifying its method of analysis, we have analyzed the Supreme Court precedent "by considering what the Court actually did, rather than by dissecting isolated pieces of text."
Under rational basis, any plausible reason may be used to justify a classification made by a law. Heightened scrutiny on the other hand requires a specific justification. The appeals court has noted here that as in
Lawrence,
Windsor cites as precedent other cases where heightened scrutiny has been applied.
And here is the crux of the matter:
In its word 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.
The appeals court noted that in
Windsor the Supreme Court looked not to what justifications
might have been offered for the passage of DOMA but to that were
actually offered. The decision looked to DOMA's "design, purpose, and effect." And that is precisely application, without saying it in so many words, that heightened scrutiny has been applied.
The remainder of the decision concludes that the original case was decided wrongly because of a flawed jury selection process. But the implications go far, far beyond that because, under the Ninth Circuit's interpretation, using Windsor and, to a lesser extent, Lawrence and Witt as precedents, all cases involving classification based on sexual orientation must be subjected to heightened scrutiny. And it is virtually certain that no laws discriminating on the basis of sexual orientation can possibly stand up to that level of scrutiny. Your views of course may differ.
A COUPLE OF UPDATES:
First of all, thanks to Kossack anodnhajo for finding a direct link to the decision.
Also I should have noted that the decision was written by Judge Stephen Reinhardt, who authored the ruling upholding Judge Vaughn Walker's decision on Prop 8.