Ninth Circuit Court of Appeals rules jurors can’t be kept off a jury because of their sexual orientation
January 21, 2014
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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