Federal Appeals Court: Lawyers Cannot Exclude Jurors Because They are Gay

The 9th Circuit Court of Appeals has ruled that lawyers cannot exclude potential jurors from a jury because they are gay, Buzzfeed reports:

JuryThe 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 the new standard, Judge Stephen Reinhardt examined the Supreme Court’s June decision in Edith Windsor’s case challenging the Defense of Marriage Act. 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.

Back in September, our legal editor Ari Ezra Waldman discussed the case, Glaxo v. Abbott:

The case may not initially strike us as the stuff of social justice: two multibillion dollar companies fighting over potentially hundreds of millions of dollars in revenue while paying multimillion dollar law firms millions of dollars to do it. But in the blink of an eye, the lawyers went from talking about "unfair competition" to talking about "antigay discrimination."

The case revolves around the price of an HIV drug and whether one company's decision to quadruple the drug's price violates unfair competition laws. At jury selection time, one of the attorneys used his right to exclude certain members from the jury pool to, ostensibly, exclude a gay person. We don't know for sure that this is what happened; these are allegations and proof is always hard to come by in these circumstances. But if the allegations are true, the act is troubling, at best: the lawyer was suggesting that a gay person cannot be impartial in a case involving an AIDS drug.

The case now asks: Can a person be excluded from a jury simply because of his or her sexual orientation?


  1. HadenoughBS says

    I really love this part of the Court’s decision as reported by BuzzFeed Politics:

    “Examining the history of discrimination faced by gays and lesbians, (Federal 9th Circuit Court of Appeals judge) Reinhardt then applied that to the questions raised about the potential juror’s exclusion, writing:

    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.”

    Wow, just, wow! This could have huge implications for other LGBT court cases.

  2. Francis says

    The biggest news in this ruling: Heightened scrutiny review. That is huge news. Citing Windsor and SCOTUS’s ruling on DOMA. This is a case to keep an eye on going forward for us.

  3. says

    Game changer. This ruling pretty much destroys the basis for Sandoval ruling on Nevada’s ban on marriage equality. That ruling was based primarily on a rational review that the state could discriminate without having to show a substantial need. Justice Shelby hinted at the relevance for using heightened scrutiny on sexual orientation bias but didn’t find it necessary to his ruling. But here you have a Circuit Court ruling that due to the extensive history and nature of the discrimination we’ve endured and it’s resulting ‘systematic exclusion from the fundamental institutions of self-governance’ that state bias based on sexual orientation & identity is subject to heightened scrutiny. HUGE.

    In addition to the ruling for heightened scrutiny Justice Reinhardt also cited the historical aspects of the institutionalized discrimination we’ve faced as the ‘anticitizen’.

    He uses the absolute essence of Kennedy’s Windsor language on human rights & dignity when emphasizing the deprivation the LGBT community has had to live under ‘throughout the twentieth century and even until today’ for the basis of heightened scrutiny.

    Love this. ‘Windsor’s reasoning reinforces the constitutional urgency of ensuring that individuals are not excluded from our most fundamental institutions because of their sexual orientation.’ CONSTITUTIONAL URGENCY of participation in FUNDAMENTAL INSTITUTIONS.

    This is what he found in the depth & breadth of Windsor.

    Amazing. It’s heartening to see so many Justices on the higher courts that are willing to take a stand against societal injustice. He absolutely gets it. Thank you Justice Reinhardt.

    To those objecting to being called out for bigotry Judge Reinhardt gives you this.

    “Prejudice . . . rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.”

    Insensitive irrational ignorance. 3I

    Intent vs results. Whether animus or ignorance the results are the same. Prejudice, bigotry, discrimination.

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