Ninth Circuit: gays deserve heightened scrutiny

Timothy Kincaid

January 21st, 2014

In 2011, GlaxoSmithKline sued Abbott Laboratories over the pricing of an HIV drug. Glaxo received a mixed win, but was not awarded the funds they felt they deserved and argued that the process was unfair, specifically the way in which the jury was selected.

Abbott’s attorneys had excluded a potential juror because he was gay and they believed that he would be biased against their drug pricing practices.

It has long been impermissible to exclude juror based on race or on sex. But the question had not been answered as to whether a person’s sexual orientation could be a reason for exclusion.

Now the Ninth Circuit has weighed in and, not surprisingly, the answer is no. You cannot purposefully select an all-straight jury (or, for that matter an all gay one).

But while it’s nice to find that I can’t be discriminated against in jury selection (though I’m tempted to wish otherwise) the reason for the ruling is the big story here. (Buzzfeed)

The 9th Circuit Court of Appeals, in a unanimous decision, held that discrimination based on sexual orientation is subject to heightened scrutiny — a decision the court concluded has been made in action, though not in word, by the Supreme Court itself.

In describing the reason for applying the new standard, Judge Stephen Reinhardt examined the Supreme Court’s June decision in Edith Windsor’s case challenging the Defense of Marriage Act. Although equal protection claims brought based on sexual orientation have previously been judged under the lowest level of review, called rational basis, the 9th Circuit held that a higher standard now applies.

Writing for the three-judge panel, Reinhardt wrote:

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.

When a court reviews a discrimination case, it has different levels of “scrutiny” with which it examines a potentially discriminatory situation.

The weakest, “rational basis”, requires that the state be attempting to bring about a legitimate governmental purpose and that the law be rationally related to that goal. For example, a state might restrict driving in a carpool lane to vehicles with a minimum number of passengers. And while single people might feel this disadvantages them, because the state seeks to reduce vehicle emissions (a legitimate purpose) and because encouraging carpooling is rationally related to that goal, there is no civil rights issue. Under this basis the state generally has the presumption of legitimacy.

The strongest, “strict scrutiny”, requires a compelling governmental interest to which the policy is narrowly tailored and is the least restrictive way to achieve that goal. This category comes into play when a targeted group has a history of discrimination, an immutable characteristic, and is politically powerless to bring about change on its own, such as a group defined by race.

Strict scrutiny is a much higher standard and much more difficult to pass. Under this basis, the presumption is on the side of the group subjected to discrimination. For example, if a state were to pass a law restricting a carpool lane on the basis of race, it would be assumed to be unconstitutional out of the gate.

In between is “intermediate scrutiny”, in which a law must be for an important governmental interest and substantially related to that interest. Sex and illegitimacy issues fall into this category.

Another possible category appears to be “heightened scrutiny”, which is not yet well defined. It may be the same as intermediate scrutiny, and has been used in legal circles interchangeably, but that is not yet clearly established. But if it is not the same, it’s quite similar. It is in this category that the Ninth Circuit has found sexual orientation.

What all this means in practical terms is that – unless the Supreme Court reverses this decision – at least in the Ninth Circuit, laws that distinguish on the basis of sexual orientation will likely be overturned.

We have won a number of issues on the lowest, rational basis scrutiny, and if a state must now prove that their anti-gay discrimination is substantially related to an important governmental interest, then we have an even better chance of winning.


January 21st, 2014

“Abbott’s attorneys had excluded a potential juror because he was gay and they believed that he would be biased against their drug pricing practices.”

I can’t believe that they were able to argue that because he was gay he would be biased against them. I really thought we had gotten past the whole gay=aids thing.

As for me I would have been biased towards glaxo simply because I am of the opinion that your practices should not limit the number of people that can afford your drug especially if it is a drug necessary for prolonging life.


January 21st, 2014

Who would have predicted that after all the recent rulings on gay marriage, a case about jury selection would raise the level of scrutiny to sexual orientation discrimination?

This excites me on a number of levels, as your last sentence rings truer than ever. The only thing that bums me out is that our opponents get to say, “we would have won under rational basis.”

I took great delight in reading the decisions of Judges Shelby and Kern, in no small part because they eviscerate all anti-gay arguments at the lowest level of scrutiny. What better way to destroy an argument than to show that it’s not even rationally related to a legitimate (not even compelling) government interest? From now on, the courts might only say that our opponents’ arguments are unimportant and insubstantial, rather than irrational and irrelevant.

Oh, well. I guess I’ll just have to live with the fact that sexual orientation (and hopefully gender identity) will be under heightened scrutiny. :-)


January 21st, 2014

Not a lawyer, but my understanding was that “heightened scrutiny” is the generic term for all forms of scrutiny that are more restrictive than rational basis.

So that “rational basis with bite,” “intermediate scrutiny,” and “strict scrutiny” were all various levels of heightened scrutiny. As I read the ruling, it seemed they were clear in saying that some form of heightened scrutiny applies, but didn’t want to go on record as declaring which in particular.


January 22nd, 2014

There should be a system where people can volunteer for a higher chance at getting jury duty. (Still random, and still not exempting people just because they don’t want to, but maybe put volunteers’ names in the hat two or three times each.) I enjoy it and have a loose enough schedule that it wouldn’t be much burden that way, and yet have been called only three times and only got to serve once.

Spunky: I for one will gladly take improved chances of winning over better gloating when there is a win any day.


January 22nd, 2014

Thanks, Timothy, for this simple delineation of the different levels of scrutiny. While reading an image formed in my mind of the court operating and deliberating decade after decade in front of one of those old-time scrolling scenery reels where the object in the foreground remained stationary while the “world” around it changed.

It seems to me that the application of varying standards from “rational basis” through all the levels of “heightened” up to “strict scrutiny” are a result of the way things appear to the court in contrast to the social context or background they are reviewed against.

Today, discrimination against gay people for its own sake is glaringly obvious and without rational basis. 30 years ago that same discrimination seemed most rational. Same gay people. Same discrimination. The only thing that has changed (besides the composition of the court) is the social backdrop – the context and shared values of society – against which these cases are considered.

How else to explain the 17 years between Bowers v. Hardwick which upheld sodomy laws and Lawrence v. Texas which struck them down? The latter case set the stage for SCOTUS rejection of Amendment 2 in Colorado – which was the first time gays were referred to as a “class of persons” – and it was that designation that supported the heightened scrutiny of the Windsor case.

With each decision the scrolling background got another couple of cranks and society changed. By the time the next round of cases on Marriage Equality come before the court that social context (and the make-up of the court) will likely have changed that much more. This will lead, hopefully, to the final underpinnings of DOMA being struck down, rendering all anti-same-sex marriage laws remaining on the books unconstitutional – the same way Lawrence neutralized the remaining sodomy laws. If that is decided on the basis of applicability of “equal protection” every antigay law in the country will fall.

Same gay people. Same hateful laws. Same discrimination. But the times have changed and with it the backdrop against which SCOTUS evaluates our fate. It is fascinating to have lived through these social changes. Though the pace has often felt glacial, in the overall context, it has been blindingly fast – too fast for vast swatches of the American people who just don’t recognize the world around them anymore.


January 22nd, 2014

@Victor: Beautiful comment! Although I think you reversed the cause/effect timeline of Romer v. Evans (in 1996, about Amendment 2) and Lawrence v. Texas (in 2003, about anti-gay sodomy).


January 23rd, 2014

@Spunky: You are correct! I confess I did mistakenly reverse Romer and Lawrence. Sorry! I got caught up in the sweep of history…😍

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