Ninth Circuit: gays deserve heightened scrutiny
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.