"[T]here can no longer be any question that gays and lesbians are no longer a "group or class of individuals normally subject to 'rational basis' review."
So wrote Judge Reinhardt of the 9th Circuit Court of Appeals, who concluded that not only did heightened scrutiny apply to sexual orientation classifications, but that under such scrutiny, challenges to jurors because they are gay are unconstitutional.
This issue arose in an antitrust and licensing dispute between GlaxoSmithKline (GSK) and Abbott Laboratories over the pricing of HIV medications. During jury selection, Abbott used its first peremptory strike against the only self-identified gay member of the jury panel. GSK challenged the strike under Batson v. Kentucky, 476 U.S. 79 (1986). Batson prohibits using peremptory strikes on jurors based on their race. The Batson rule was also extended to include gender by the Supreme Court in J.E.B. v. Alabama, 511 U.S. 141 (1994). The district judge denied GSK's challenge.
On appeal, the 9th Circuit had little trouble finding that GSK had made out a prima facie case under Batson, that is, that the juror was challenged because he was gay.
To establish a Batson violation, GSK had to produce evidence that: 1) the prospective juror is a member of a cognizable group; 2) counsel used a peremptory strike against the individual; and 3) "the totality of the circumstances raises an inference that the strike was motivated" by the characteristic in question.
Here, the juror at issue was the only juror to have identified himself as gay on the record, and the subject matter of the litigation presented an issue of consequence to the gay community, given Abbott's decision to significantly increase the price of its HIV drug. The Court noted that when the subject matter of the litigation coincides with the classification of the juror being challenged, the potential for an impermissible strike increases substantially.
Additionally, the Court was not impressed by Abbott's counsel's claim that he did not know the juror was gay, when it was very clear from the record that the juror, and the judge, had referred to his male partner. Abbott's counsel also failed to adequately explain his reason for striking the juror.
"The record persuasively demonstrates that Juror B was struck because of his sexual orientation."
Does Batson Apply to Prohibit Juror Strikes Based on Sexual Orientation?
Finding that GSK had established intentional discrimination, the Court then turned to the seminal issue: does Batson apply to prohibit juror strikes based on sexual orientation?
To reach its final destination, the Court set out two hurdles: 1) what level of scrutiny applies to sexual orientation classification; and 2) applying the appropriate standard, whether peremptory strikes based on sexual orientation are constitutional.
The standard of review to be applied to a classification is obviously extremely important. Under rational basis review, most classifications will pass constitutional muster because all that needs to be shown is whether "any state of facts reasonably may be conceived to justify" the classifications imposed by the law. It is the lowest of three levels of scrutiny that are used in deciding the constitutionality of laws.
Interpreting US v. Windsor to Apply Heightened Scrutiny
The Court admitted that it had applied rational basis review to prior cases which dealt with the issue of equal protection. Nevertheless, the Court turned to the most recent case on the relationship between equal protection and classifications based on sexual orientation, which was set forth by the Supreme Court in United States v. Windsor, 133 S. Ct. 2675 (2013). US v. Windsor struck down the provision of the Defense of Marriage Act that limited the definition of marriage to a man and a woman.
In Windsor, Justice Kennedy did not identify a level of scrutiny to be applied to the equal protection claim. Judge Reinhardt was not daunted however, and proceeded to look at what was done in the case, and concluded that the answer was clear.
"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."
Because the Windsor opinion delved into the "essence" of the law, instead of conceiving of hypothetical justifications for the law, Judge Reinhardt had no trouble finding that Windsor applied heightened scrutiny, even if it does not explicitly state it.
There was no presumption in favor of the constitutionality of the law in Windsor, and the opinion was greatly concerned by the imposition of inequality on gays and lesbians, and the message of second-class status that was sent by the law, wrote Reinhardt.
"Windsor requires that when state action discriminates on the basis of sexual orientation, we 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."
Gay Juror Challenge Deemed Unconstitutional
In applying heightened scrutiny to the equal protection issue in this case, the 9th Circuit concluded that Batson is applicable to sexual orientation classification. Therefore, Abbott's use of its peremptory strike against the gay juror was impermissible because equal protection forbids striking a juror on the basis of his sexual orientation.
"To allow peremptory strikes because of assumptions based on sexual orientation is to revoke this civic responsibility, demeaning the dignity of the individual and threatening the impartiality of the judicial system."
The level of scrutiny applied to sexual orientation classifications has been a hotly contested, if unanswered, question. This opinion could have wide-ranging effects on the many challenges to gay marriage bans currently pending, who will no doubt be citing to this opinion.
Judge Reinhardt also wrote the 9th Circuit opinion in Hollingsworth v. Perry. The Hollingsworth opinion struck down Proposition 8, which had amended California's state constitution to eliminate the right of same-sex couples to marry. The U.S. Supreme Court later ruled on the narrow grounds that the proponents of Proposition 8 did not have standing, and thus the district court's order striking down Proposition 8 was left intact.