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Ninth Circuit Court of Appeals rules jurors can’t be kept off a jury because of their sexual orientation

LGBT Legal Cases Marriage equality Marriage Equality Trials

The Ninth Circuit Court of Appeals issued its decision in a jury selection case closely-watched by LGBT legal observers. In a trial stemming from a dispute over HIV medication, one of the litigants struck a gay man from the jury pool after he revealed that he’s gay. Under prior Supreme Court precedent, jurors can’t be struck from the jury pool for discriminatory reasons such as race and sex. This case involves the question of whether sexual orientation should be added to that list.

As EqualityOnTrial previously wrote, the case directly implicates whether the Ninth Circuit should review claims of discrimination against gays and lesbians under a more heightened form of judicial review under the Constitution’s Equal Protection Clause:

A law or policy that classifies people on the basis of race is subject to very stringent court review, called “strict scrutiny”. Under that standard, there has to be a compelling government interest to classify on the basis of race, and the classification has to be narrowly tailored to fit that interest. Most laws reviewed under strict scrutiny don’t pass constitutional muster; it’s a high constitutional bar. Sex-based classifications are reviewed under intermediate scrutiny. Under that standard, the government’s interest has to be “important”, and the classification has to be substantially related to that interest. This standard is less stringent than strict scrutiny, but importantly, it still forces the government to justify its classification. Under the most lenient rational basis review, the standard currently used to evaluate classifications on the basis of sexual orientation, the person challenging the classification has to prove there is no rational reason for the law, and lawyers can go beyond the legislative history to justify the classification.

The request for briefing addressing the level of scrutiny, according to the report, is a consequence of the Supreme Court’s decision in United States v. Windsor in June. The Court struck down Section 3 of the Defense of Marriage Act (DOMA), writing that it violates due process and equal protection principles found in the Fifth Amendment. The panel requested briefing on the decision’s impact, and on whether or not the decision applied a heightened level of judicial scrutiny. (Justice Kennedy’s majority opinion didn’t directly address the level of scrutiny, except for a few passages in which he referred to “careful” review of anti-gay laws.) The opposing side had filed a brief suggesting that heightened scrutiny, and considering sexual orientation a “suspect classification” would be a prerequisite to a challenge to the striking of the juror. If the Ninth Circuit finds more backing for application of heightened scrutiny, it could eventually be applied.

Today’s ruling holds that heightened scrutiny does apply, because of the implications of the Supreme Court’s decision last June in United States v. Windsor:

In sum, Windsor requires that we reexamine our prior precedents, and Witt tells us how to interpret Windsor. Under that analysis, we are required by Windsor to apply heightened scrutiny to classifications based on sexual orientation for purposes of equal protection.

Essentially, the Ninth Circuit decided that heightened scrutiny could only be applied if (1) the court held a hearing of a bigger panel of judges (“en banc” panel, consisting of 11 judges at the Ninth Circuit, but requiring the full panel of circuit court judges in other circuits) and decided to overrule previous precedent pointing in the opposite direction, or (2) a change in the law by the Supreme Court. The Ninth Circuit looked at the Windsor decision and ruled that the Supreme Court applied heightened scrutiny, without naming it directly:

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.

Because the Windsor decision analyzed Section 3 of the federal Defense of Marriage Act (DOMA) under heightened scrutiny, that standard will now apply in the Ninth Circuit without rehearing the case en banc.

The Windsor Court, the opinion notes, reviewed the actual purposes and justifications for the law, whereas under the more lenient rational basis standard, any conceivable rationale is enough to sustain a law. Secondly, the Windsor Court shifted the burden from the same-sex couple to the government when it wrote that the government has to “justify disparate treatment of the group.” This is also not a typical consideration under rational basis: the person bringing a challenge to the classification has to tell the court why all the conceivable rationales are irrational.

The unanimous three-judge panel ultimately held that gay jurors can’t be struck from a jury based on their sexual orientation:

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.

The holding on jury non-discrimination has huge implications in the Ninth Circuit and nationally, and the holding that heightened scrutiny is required for classifications based on sexual orientation within the Ninth Circuit will undoubtedly impact that court’s upcoming review of Sevcik v. Sandoval, Lambda Legal’s challenge to Nevada’s same-sex marriage ban.

Thanks to Kathleen Perrin for this filing

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64 Comments

  • 1. allen  |  January 21, 2014 at 2:21 pm

    Whoo! Go Judge Reinhardt!!

  • 2. davep  |  January 21, 2014 at 2:31 pm

    Wow. This can be BIG. Excellent!

  • 3. bayareajohn  |  January 21, 2014 at 2:45 pm

    This is what we've been waiting for… this is the crest of the wave that's been building. Champagne tonight.

  • 4. SoCal_Dave  |  January 21, 2014 at 2:47 pm

    How do folks think SCOTUS will react to this? Was it their intention to "in word and deed" apply heightened scrutiny so that other courts, like the 9thC., would be able to latch on to that without them having to spell it out? Or did they avoid specifying heightened scrutiny on purpose because they aren't ready for it and will be unhappy about the 9thC's interpretation?

    Part of me assumes SCOTUS is getting what they wanted without having to get their hands dirty. But part of me wonders if they are getting bench-slapped again for being so mealy-mouthed.

  • 5. Anthony  |  January 21, 2014 at 2:55 pm

    Kennedy deliberately avoided exactly naming heightened scrutiny in DOMA because he knew that would mean the end of the marriage bans in the entire country, but he did mention it in his opinion in the beginning. However, the effect of the ruling was heightened scrutiny. I think it was a calculated ploy by him to get the country conditioned for a future sweeping ruling, with this time sexual orientation formally being considered a protected class.

  • 6. Pat  |  January 21, 2014 at 3:08 pm

    Can we expect an appeal to SCOTUS?

  • 7. Chuck from PA  |  January 21, 2014 at 3:36 pm

    With heightened scrutiny required in the 9th Circuit, it's an opportune time for ME cases in Alaska, Arizona, Montana, and Idaho. Would it be appropriate under this new requirement to file a case and demand summary judgment?

  • 8. Eric  |  January 21, 2014 at 3:36 pm

    This was a benchslap to SCOTUS and the other circuit judges that have repeatedly denied en banc requests to remedy High Tech Gays' sexual orientation rational basis holding.

  • 9. Eric  |  January 21, 2014 at 3:38 pm

    I hope so, I can't wait to see the fundies come to the aid of big[ot] pharma.

  • 10. Richard Weatherwax  |  January 21, 2014 at 3:39 pm

    What SCOTUS wanted is not the question. Each justice has her or his own view. The person who writes the decision must word it so that at least four other justices will agree with the wording. Kennedy probably would have liked to say, "heightened scrutiny", but had to hold back to keep the court majority together.

  • 11. JayJonson  |  January 21, 2014 at 3:43 pm

    I think the one that will most immediately be affected is the Nevada case.

    More on the ruling here: http://www.glbtq.com/blogs/ninth_circuit_court_of

  • 12. grod  |  January 21, 2014 at 3:45 pm

    Dave – Agree. OK's Judge Terence Kean [Bishop & Burton 2014] "The Supreme Court has not expressly reached the issue of whether state laws prohibiting same-sex marriage violate the U.S. Constitution. However, Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one. pg 66

  • 13. allen  |  January 21, 2014 at 3:45 pm

    Just curious, who on the majority of the Windsor decision do you believe would have been against heightened scrutiny?

  • 14. Anthony  |  January 21, 2014 at 4:09 pm

    Nobody. They all wanted to give us heightened scrutiny but didn't want to declare it when so many states didn't allow marriage.

  • 15. Dr. Z  |  January 21, 2014 at 4:58 pm

    If there's no appeal (inconceivable) then marriage equality just came to the remaining states in the Ninth Circuit (Nevada, Oregon, Alaska, Idaho, Montana, Guam, Marianas Islands.)

    I wish it had been someone other than Reinhart tho. He's been reversed a lot by SCOTUS.

  • 16. Eric  |  January 21, 2014 at 5:16 pm

    Others have accused Reinhardt of being the "most overturned judge in history," including 11 reversals in one year alone, five of them unanimously.

    Reinhardt's response, "They can't catch them all."

  • 17. Zack12  |  January 21, 2014 at 5:43 pm

    Nope and I think in this case,he is laying the groundwork along with other judges for heightned scrunity.

  • 18. grod  |  January 21, 2014 at 7:08 pm

    Eric – would it be desirable for the jury selection case to be reviewed en banc? Reinhardt's analysis of Windsor p16-26 – determining heightened scrutiny was used by Kennedy majority without saying so – is the most compelling analysis that I read. With 44 cases related to marriage equality now before the courts, Reinhardt's logic is likely applicable to them all. It's application to Sevick v. Sandoval will made it well worth the wait.

  • 19. Christian  |  January 21, 2014 at 7:24 pm

    I still don't understand why they're so scared of a backlash when 'Loving' was issued 67% (Gallup) of the country favored bans on interracial marriage which is far from the ratio that favor anti-marriage equality bans now.

    Hell, if 'Bruning' was appealed to SCOTUS in 2006 they could've ruled in favor of marriage equality then and washed their hands of the issue. Kennedy is a good writer, but he has the judicial bravery of a mouse with trust issues.still, thankful for what we do get.

  • 20. Shax  |  January 21, 2014 at 8:20 pm

    So "High Tech Gays v. Defense Industrial Security Clearance Office" is now legally mooted?

  • 21. bythesea  |  January 21, 2014 at 8:48 pm

    Generational imho. Terrified giving too much too fast to us will… well, I dunno because I don't "get it," but it's far past time (by decades).

  • 22. Eric  |  January 21, 2014 at 9:22 pm

    It would be better for an en banc request to get turned down. The holding would still stand.

    I'm sure the PR guys are deciding how much more anti-gay the company will look if they appeal.

  • 23. Carol  |  January 21, 2014 at 9:37 pm

    And it was unanimous.

  • 24. sfbob  |  January 21, 2014 at 10:27 pm

    I can't imagine why that wouldn't be the case. IIRC, High Tech Gays was decided based on Bowers vs Hardwick so it should have been mooted already (though apparently it has not yet been).

  • 25. Eric  |  January 21, 2014 at 11:26 pm

    There is no backlash, just some bigots that happen to sit on SCOTUS and are doing their best to deny gays anything.

  • 26. Zack12  |  January 22, 2014 at 5:30 am

    Which is why 2016 will be so important.
    Scalia,Kennedy,Ginsburg,Breyer are getting up there in ages and it is very likely the next president will picking 2-3 justices.
    More Alito or Scalia clones replacing people like Ginsburg,Breyer and even Kennedy would be a nightmare.

  • 27. Dr. Z  |  January 22, 2014 at 5:44 am

    Here's a prediction: SCOTUS will grant cert for the appeal and use the occasion to strike down the 1986 Batson case, revising or eliminating preemptory challenges on juries. Their ruling will sidestep the issue of heightened scrutiny for us, and we'll be back to the status quo. Not good for us, but SCOTUS has been signaling for a while that they want to revisit preemptory challenges in jury selection.

  • 28. grod  |  January 22, 2014 at 7:38 am

    In the Nevada case, in their opening 125 pg brief to the 9th Circuit Appeals Court, Sevcik et al use a similar analysis of Windsor as does S. Reinhardt et al in the jury selection case: "as Witt found by looking to Lawrence, this Court should find that Windsor’s “careful consideration” of the sexual orientation classification in that case requires at least some form of heightened review here." p. 68 http://www.lambdalegal.org/sites/default/files/dk

  • 29. StraightDave  |  January 22, 2014 at 8:07 am

    My guess is Ginsberg was the most likely, due to her public reflection on the Roe v Wade "backlash". Not that she's against it, per se, but appeared to be arguing for proceeding cautiously. However, in light of the past 7 months and 8 more states in the books (3 by courts, 5 by legislatures), she might now realize that time has just flown past her. She'll get a 2nd chance soon.

  • 30. mtnbill  |  January 22, 2014 at 8:40 am

    the reply brief just filed had a article in the Las Vegas Review Journal stating that the defendants argued that marriage is needed to promote the raising of kids by both biological parents. (there should be more in a separate news item today.)

    I guess that the second marriage of the now deceased Bill Raggio (a long time force in Nevada politics) is now a consolation prize.

  • 31. Steve  |  January 22, 2014 at 8:50 am

    Yeah, he probably wanted the lower courts to spend a few years trying to figure out what he exactly he meant.

  • 32. Bruno71  |  January 22, 2014 at 9:04 am

    Whether he wanted to or not, that seems to be the effect. I just hope this SCOTUS remains intact for a few more years (or a Democrat is elected in 2016).

  • 33. Bruno71  |  January 22, 2014 at 9:09 am

    I bet he takes the label "conservative" (small c) very seriously. Everything in baby steps, don't address a case any more broadly that one has to, don't make it look like you're creating new law from the bench. The fact that some or all of the 4 "liberal" justices seem to agree with the baby steps on marriage equality only bolsters his hesitant lead on the mater.

  • 34. Bruno71  |  January 22, 2014 at 9:11 am

    If they can rule with a lesser level of scrutiny, they will. It's their way.

  • 35. Bruno71  |  January 22, 2014 at 9:13 am

    There are already ME cases out of Idaho and Arizona. However, aside from more district rulings to bolster a circuit court ruling, it won't bring equality to those states any faster than the Nevada case will. In fact, it could slow the process down if the 9th waits to consolidate more cases.

  • 36. Rick O.  |  January 22, 2014 at 9:18 am

    Worse than nightmare. Another 20 years of Roberts court would truly tear at the fabric of society, one Citizens United after another.

  • 37. TimATL  |  January 22, 2014 at 1:15 pm

    Didn't the 9th Circuit rule on Dec 20th that answering briefs in Sevcik v Sandoval were due in 30 days? That would have been on Jan 19th. Did that happen yet, or was there another delay? When are oral arguments expected?

  • 38. Pat  |  January 22, 2014 at 2:18 pm

    Mmmh, so you also mean, if the ruling stands, marriage equality just came to the 9th circuit? Can someone explain how 'automatic' that is?
    – Wouldn't that concern only jury selection?
    – If that establishes a heightened scrutiny in all the 9th circuit, how direct is the link to marriage equality? Would that require a further lawsuit based on that ruling? (which would probably be way less advanced than the Sandoval case)
    – If SCOTUS grants heightened scrutiny as part of this case or another one, how do the state marriage bans fall? Wouldn't that still require further lawsuits in each state, and simply help making the rulings more of a slam dunk for us?

  • 39. sfbob  |  January 22, 2014 at 2:43 pm

    It would not be automatic and would indeed require further litigation. However, I think it's pretty clear that laws which classify people based on sexual orientation are never going to be able to survive heightened scrutiny.

    Per Cornell University Law School's website:

    "To pass intermediate scrutiny, the challenged law must further an important government interest by means that are substantially related to that interest."

    I don't see how any marriage equality ban could possibly get past that one.

  • 40. grod  |  January 22, 2014 at 3:51 pm

    mtnbill: NAvada's Reply Brief in Sevcik vs Sandoval rgat you mention above : http://www.scribd.com/doc/201345992/12-17668-113 While originally expected Nov 18, and then Dec 18, the plaintiffs agreed to the January 17 date on condition of no more requests for extensions. Do you know when the plaintiffs are scheduled to reply. And what will the court schedule look like thereafter? I read there were a number of amicus curiae briefs G.

  • 41. Deeelaaach  |  January 23, 2014 at 12:03 am

    I can't see a ban getting past that either, but I wouldn't be the least bit surprised to see the proponent of such bans arguing that their child safety "argument" would pass even strict scrutiny. As someone posted several days ago, they seem to be drowning in the Kool-Aid…

  • 42. Stefan  |  January 23, 2014 at 12:47 am

    Oral arguments will likely happen in March, same with Kitchen (Utah case).

  • 43. grod  |  January 23, 2014 at 3:22 am

    Tim: Genderless Marriage vs Traditional Marriage Battle is the core frame of Co Defendant Coalition for the Protection of Marriage Nevada's rank. It is a must read by all in the LGBT community and anyone who is committed to equality. http://www.scribd.com/doc/201279743/12-17668-110
    Coming at the time when Heightened Scrutiny re sexual orientation has just been deemed precedential in the 9th Circuit, the underpinning assumption that Navada's interest in maintaining traditional marriage is sufficient to win the day under rational basis – has just been mooted. Telling the court to butt out – your legalistic minds are too narrow to do justice for the institution of marriage should be well received. Its not surprising that the brief makes inflammatory assertion. Its author, who made the stay submission to the Supremes in Utah's Kitchen et al case, like Sandoval, indeed Chief Judge R. Jones believe that Baker vs Nelson remains controlling. That he brings in White Supremacists into his pseudo- analysis is out of bounds. I hope the Court tells Monte N Stewart [who hails from Idaho] to get his head out of his ass.

  • 44. grod  |  January 23, 2014 at 4:38 am

    Monte Stewart re your reference to Canada (p 38) quoting David Blankenhorn. Your statement is facile if not 'reality' as you assert. When did you or David become knowledgeable about family law in the 13 'provincial' jurisdictions and federal government? Tell me more when your up to speed on eight to twelve months government paid [55% of earnings] maternity or adoption leave [can be split]. How many paid/unpaid in Idaho?

  • 45. JayJonson  |  January 23, 2014 at 7:16 am

    The term "genderless marriage" undoubtedly has its origins in the Brigham Young Law School. It can only help our side when the opposition files so transparently ideological briefs as this.

  • 46. Steve  |  January 23, 2014 at 7:30 am

    The term "genderless marriage" is so stupid and meaningless. People still have genders. Two men or two women. That's the whole point.

  • 47. StraightDave  |  January 23, 2014 at 7:36 am

    Why couldn't this Monte Stewart guy have handled Utah's appeal? He was already involved in the stay motion and is fairly local (Idaho). Did LDS consider him too much of a fire-breather to go up against someone like Judge Reinhart? That would have been quite a show. He seems to not have noticed that the last 5 years occurred. I need to remember to watch the appeal webcast whenever it happens.

  • 48. grod  |  January 23, 2014 at 7:40 am

    Dave Stewart is still part of the Utah team, but not the lead.

  • 49. StraightDave  |  January 23, 2014 at 7:43 am

    Wait a minute! Why does the COALITION FOR THE PROTECTION OF MARRIAGE have standing in this case that was filed against the Gov of UT? Didn't SCOTUS eliminate that sort of interference for Prop8?

    They even boldly filed this as "ANSWERING BRIEF OF DEFENDANT-APPELLEE", when they are, in fact, only an " Intervenor-Defendant-Appellee". This is not an amicus brief, which it should be, meaning Stewart should not get oral argument time.

    What am I missing here?

  • 50. grod  |  January 23, 2014 at 8:01 am

    The Coalition FROM the Protection of Marriage apparently were the movers and shakers in promoting the 2002 Marriage Amendment, and in recognition of the centrality of their role, that they have this status. It was the Coalition that sought a writ of cert{iorari before Judgment by the 9th Circuit Appeals Court} and were denied. http://sblog.s3.amazonaws.com/wp-content/uploads/

  • 51. StraightDave  |  January 23, 2014 at 8:07 am

    I guess the difference may be that UT is fighting back (unlike CA) and the intervenors just ride on their coat tails. They don't need independent standing in this case. OK, never mind.

    Then I might actually be glad they are involved because they will help the defense look like fools. They really are speaking from another century.

  • 52. mtnbill  |  January 23, 2014 at 8:22 am

    The State of Nevada allowed the Coalition to represent it in court. My guess is that the Coalition is a co-counsel. If the Nevada case is the one you are referring to. Nevada by statute has to defend the law, how far up the appeal process is unknown.

    Also, in the Nevada case, the defendants (marriage equality) lost at the district level, so they appealed. The State and the Coalition are responding. This situation is not like Calif where the proponents of prop 8 lost at the district level.

  • 53. TimATL  |  January 23, 2014 at 8:26 am

    I'm confused. Are we talking about the answering brief for the Nevada case or the Utah case?

  • 54. TimATL  |  January 23, 2014 at 8:54 am

    When will the 9th schedule oral arguments for Sevcik? Will they wait until after Feb 5th, which is the due date for the reply brief from the plaintiffs? Similarly, will the 10th wait to schedule oral arguments for Kitchen until after the reply brief is due on March 4th?

  • 55. ebohlman  |  January 23, 2014 at 9:13 am

    Right, standing is only an issue for plaintiffs and appellants since they're the parties trying to get a court to take a case. Defendants and appellees are normally parties named by the plaintiffs and only participate after the court has accepted the case.

  • 56. Richard Weatherwax  |  January 23, 2014 at 10:04 am

    Do these people realize what the "traditional marriage" is?

    I grew up in the 1940's and '50's. Back then the husband was the head of the house, and the wife stayed home and raised children. There are numerous biblical passages supporting that arrangement:
    Genesis 3:16 To the woman he said:

    Your desire shall be towards your husband,
    and he shall rule over you.

    Ephesians 5:22 Wives, submit to your husbands as to the Lord.23 For the husband is the head of the wife as Christ is the head of the church.

    1 Timothy 2:11 A woman should learn in quietness and full submission. 12 I do not permit a woman to teach or have authority over a man. She must be silent. . . . 15 But women will be saved through child bearing if they continue in faith, love and holiness with propriety.

    That is the "traditional marriage," and had been so for thousands of years. If these hypocrites want a traditional marriage, that is what they want.

    The first time I picked up a law book was back in the 1950's when I was in high school. Being a teenager I looked to see what it said about sex, and was surprised to learn that a husband could not be prosecuted for raping his wife. That was based upon tradition and had biblical support. A court decision changed that, and today women are protected against abuse from their husbands. That was an major strike against the traditional marriage.

    Marriage has changed. It will continue to change.

  • 57. Richard Weatherwax  |  January 23, 2014 at 1:10 pm

    I have only read the brief in parts, but I have made some observations. In general the arguments show refinement and creativity. The author uses terms like "genderless marriage" and "gender complementarity" (There are individuals who are classified as "genderless", but the issue is not about them.) In reading the brief, you can also see how their arguments are evolving. For example, NOM had contended that the purpose of marriage was procreation.

    But the author quotes Prof. Cott as saying: “The notion that the main purpose of marriage is to provide an ideal or optimal context for raising children was never the prime mover in states’ structuring of the marriage institution in the United States, and it cannot be isolated as the main reason for the state’s interest in marriage today.”

    Then the author replies to Prof. Cott:

    "Note the careful limitation to “main purpose,” “prime mover,” and “main reason.” Prof. Cott does not deny that perpetuating the optimal child-rearing mode (by perpetuating the man-woman marriage institution) continues as an important, even compelling, societal interest. Any quibble over whether it is the “main” or “prime” interest at stake is irrelevant to this Court’s constitutional analysis; what is relevant is that the interest is real, valuable, and enduring."

    This is an improved argument, and harder to overcome, but it doesn't change anything. Defining marriage as "one man and one woman" still does not require either the ability or desire for the couple to have children. The ban is about gays and lesbians, not children..

    The brief does not touch upon the fact that gays and lesbians can and do have children. Wouldn't those children be better off in a married household, even if their parents are same-sex?

    What solution does the ban on same-sex marriage have for the thousands of children who at this moment have no one they can call father or mother?

    The ban on same-sex marriage was not written to protect children.

  • 58. Ragavendran  |  January 23, 2014 at 5:50 pm

    How many of the decisions written by Reinhardt were unanimous rulings, with the other two judges in his panel concurring? This one was unanimous.

  • 59. Hayley  |  January 24, 2014 at 9:04 am

    What's so terrible about a "genderless marriage" anyway? Even people in heterosexual marriages don't have to obey society's pre-conceived, binary gender roles if they don't want to. Also, I think it's highly amusing how they have to say gender instead of (biological) sex to avoid "sexless marriage."

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