Gay Jurors and Marriage Equality: The Common Legal Thread

AbbottThis step forward in equality comes to us courtesy of a fight between pharmaceutical companies. SmithKline Beecham and Abbott Labs both make HIV medications. SmithKline alleges that Abbott performed a little bait-and-switch: it allowed SmithKline to include Abbott's new HIV drug in its cocktail, but then quadrupled the price so as to make SmithKline's drug combination much less attractive than Abbott's own cheaper therapy. Fast forward to the trial on this allegation and Abbott wants the only openly identified gay person off the jury.

Abbott's lawyers are not being hateful here. HIV health care is of particular concern to the gay community and they want an unbiased jury. The law even allows each side of a jury trial a certain number of what are called "peremptory challenges," or strikes to the jury pool. But you cannot strike someone for an illegitimate reason. A famous case every law student learns called Batson v. Kentucky held that you cannot strike a potential juror from the pool simply on the basis of race. Batson was a criminal case, but the rule has been extended to civil cases like SmithKline's.

So the question was whether the Batson rule applied to sexual orientation.

The Ninth Circuit not only said yes — you cannot strike a juror simply because he is gay — it took us through step by step: First, striking a juror on the basis of sexual orientation implicates unequal treatment. Second, unequal treatment on the basis of sexual orientation merits heightened scrutiny. Third, under that standard, striking a gay juror violates equal protection.

This decision should strike us as just. Being gay has no bearing on your ability to be impartial, to consider the facts, and apply the law. To suggest otherwise burdens our identity with insidious stereotypes and lends institutional support to continued discrimination.

But the court's heightened scrutiny analysis was particularly notable. If you recall, we've discussed heightened scrutiny many times, most in the DOMA and marriage equality context. They speak directly to how a court will analyze a given instance of discrimination. Note that not all discrimination is bad; we discriminate against young people by not allowing them to vote or drive until a certain age. Scrutiny levels tell us how much work the government has to do to justify its discriminatory behavior. They are like hurdles on a race track — the higher the hurdle, the fewer runners are going to make it over and make the team. Similarly, the higher the level of scrutiny, the harder it will be for a discriminatory law to pass constitutional muster.

Many scholars believe that discrimination on the basis of sexual orientation demands heightened scrutiny. We meet all the requirements: we have been burdened by discrimination for generations, our sexuality is irrelevant to our ability to serve as jurors, we have traditionally lacked the political power to realize our full rights in the political sphere, and we have a defining characteristic essential to our identity as a group.

NinthcircuitBut the Ninth Circuit went a step further and argued that the Supreme Court's Windsor decision suggests that heightened scrutiny is appropriate. Review in Windsor, the Ninth Circuit wrote, was not the traditional lowest form of review that had for years been applied to anti-gay discrimination. It was something more, something higher, something "intermediate."

How could the Ninth Circuit justify this conclusion if Windsor never explicitly said it was using heightened scrutiny?

The argument is simple: Look at what the Court actually did, not what it said. In Lawrence v. Texas, for example, the Supreme Court was similarly confounding, but by looking at the Court's decision, it was clear it was not using traditional rational basis. After all, the state had to do more justifying and the cases Lawrence relied on also used something more than rational basis. The same was true for Windsor. The state had to do a lot of work to justify DOMA, the precedent Windsor cited all used more than rational basis, and the Windsor Court did not go through a list of possible rational justifications for DOMA, all of which would normally be the case in a standard rational basis case.

Although I agree that heightened scrutiny should be applied to anti-gay discrimination, there is something missing in the Ninth Circuit's decision. Just because Windsor used something more than rational basis does not necessarily mean it used heightened scrutiny. Many scholars identified a new tier of review in Lawrence, which was used in Windsor, and called it "rational basis plus" or "rational basis with bite." It's tenuous to exist in this unjustifiable limbo between rational basis and heightened scrutiny, but the Ninth Circuit has nonetheless failed to make the jump.

If the Ninth Circuit's opinion catches on, if sexual orientation discrimination gets heightened scrutiny post-Windsor, our battle is more than half over. It is hard to justify banning us from the institution of marriage under rational basis review; heightened scrutiny takes away all doubt.


Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


  1. Mark says


    Why wasn’t this panel–as a panel, rather than an en banc decision–bound by the High Tech Gays precedent? And does this decision bind the 9th Circuit panel that ultimately hears the Nevada case–or can that 3-judge panel say that it has the independent authority to decide whether heightened scrutiny applies?

  2. says

    @mark: thank you for your question. the whole point of the argument was that Windsor changed everything. it need not be bound by high tech gays because, the panel said, windsor used heightened scrutiny. but yes, each three judge panel is different.

  3. Sam says

    Will SCOTUS hear the inevitable appeal on this decision before/after it would have to hear any one of the state constitution ban challenges headed its way? In other words, will SCOTUS have to decide if it applied heightened scrutiny in Windsor before it actually has to decide whether to apply it in one of the looming state challenges working its way up? SCOTUS has never shied away from overturning J. Reinhardt, let’s face it.

  4. Chuckles says

    If this catches on? Is that how it works?

    Far better are the decisions that find denial of SSM rights can’t meet *rational basis* review. Utah and Oklahoma both went there. There’s no need to raise the standard — just evaluate the supposed rational bases for their irrationality. It’s already…what’s the phrase I want?…oh…yeah…catching on.

  5. Lymis says

    “Far better are the decisions that find denial of SSM rights can’t meet *rational basis* review.”

    Maybe,maybe not. Because if same-sex marriage can’t meet rational basis, and that works its way up to the Supreme Court, then we can marry, but that doesn’t address employment, or housing, or jury duty or whether bakers are free to ignore us, or child custody or any of a million other things.

    Each individual issue would have to have it’s own case and its own path. Is there a rational government interest in allowing people to fire us just for being gay, but not to keep us from marrying?

    A declaration of heightened scrutiny wipes a lot of that away.

    And the Court already laid out clearly the characteristics of a group that meets the requirements for heightened scrutiny to apply – and we do, by a wide margin. So, if we meet all the requirements to be given heightened scrutiny, what other than simple anti-gay discrimination singles us out as the only group that meets all those requirements and yet doesn’t get treated as a suspect class? And why should we sit quietly and accept that?

  6. Art Leonard says

    The 9th Circuit panel said High Tech Gays is no longer a binding precedent in the 9th Circuit because Windsor sets a new standard. Now the Smithkline Beecham case is the new standard for the 9th Circuit unless the case goes en banc and a larger panel rejects its holding, or of course unless it gets review by the S. Ct.. For now, this decision would be a binding precedent on the subsequent panel that hears the Nevada appeal, and it would also be a binding precedent on the district courts in Arizona, Idaho and Oregon which are considering marriage equality lawsuits. A three-judge panel of the 9th Circuit does not have authority to reject such a ruling by a prior three-judge panel.

  7. Keith says

    I have an odd question. What is the likelihood of Abbott Labs appealing this ruling to the U.S. Supreme Court? Do they have standing to appeal such a ruling, when the original case was primarily about unfair pricing between the two pharmaceutical companies? Also, I’ve not heard anything about the juror who was removed being specifically told it was only because he was gay; so, how defensible is this ruling if the offended juror hasn’t filed a complaint and isn’t even directly involved in the summary judgment now issued by the 10th Circuit Court? This all seems a little muddy to me, much like how the U.S. Supreme Court took a case about a film on Hillary Clinton, and somehow twisted it to be about the fact that Corporations have First Amendment rights as individuals.

  8. sfbob says

    If I am not mistaken, High Tech Gays ceased to be a precedent not because of Windsor but because of Lawrence vs Texas. High Tech Gays was decided in 1990, before Lawrence but subsequent to and based on the infamous 1986 Bowers vs Hardwick which upheld the right to criminalize gay sex and therefore permitted government to discriminate based on sexual orientation. Lawrence explicitly struck down Bowers as precedent and, in so doing, rendered High Tech Gays moot as well.

Leave A Reply