Friday, February 28, 2014

Federal Court Holds Texas Marriage Exclusion Unconstitutional

“Reminds me of the one that I love”

On February 26, 2014, federal district judge Orlando Garcia held that Texas’s state constitutional and statutory provisions excluding same-sex couples from marriage and refusing to recognize such couples validly married in other jurisdictions likely violate the U.S. Constitution.   The ruling in de Leon v. Perry granted the plaintiff couples’ motion for a preliminary injunction barring enforcement of the marriage exclusion and nonrecognition laws.  Same-sex couples are not marrying yet in the Lone Star State because the judge cautiously and expressly followed the U.S. Supreme Court’s lead by staying his order, putting the ruling on hold until after expected proceedings in the U.S. Court of Appeals for the Fifth Circuit are complete.  Judge Garcia’s order joins previous preliminary or final court rulings in favor of marriage equality by federal judges in Ohio, Utah, Oklahoma, Kentucky, Virginia, and Illinois, as well as state court rulings under the constitutions of New Jersey and New Mexico, all decided since the Supreme Court’s striking down a key part of the “Defense of Marriage Act” (DOMA) last June in United States v. Windsor.  Collectively, they are creating a well-trod path the U.S. Supreme Court could follow when it takes up the issue, sooner rather than later thanks to the welter of court decisions striking down state marriage bans and cases seeking to do likewise.

Plaintiffs Cleopatra de Leon and Nicole Dimetman, a couple since 2001, married in Massachusetts in 2009 because their home state Texas would not let them; it now refuses to recognize their marriage.  Plaintiffs Victor Holmes and Mark Phariss, who started dating in 1997, were denied a marriage license when they applied in Texas in 2013.  They sued in November 2013, and three months later they have now won an important victory.  The federal district court ruled on their motion for a preliminary injunction so that the state would not be able enforce its discriminatory marriage laws even before the court reaches a final judgment and may enter a permanent injunction.  (Since it stayed its decision, neither the plaintiffs nor any other same-sex couples will be getting married in Texas until after the appeals process is completed.)  Thus, rather than rule that in fact the state’s marriage laws are unconstitutional, the court had only to conclude that the plaintiffs had shown it likely that the laws are unconstitutional.  But the court’s reasoning in granting the motion makes it extremely unlikely that any further proceedings would make it change its mind about the laws’ permissibility.

After a quick tour of the “politically charged and controversial debate regarding the right to marry, and particularly, the right of same-sex couples to marry in the United States,” including the development of legal marriage for same-sex couples in numerous states and the Supreme Court’s invalidation of part of DOMA, the court turned to its analysis.  On the merits, Judge Garcia first concluded (as have a number of other courts recently) that the Supreme Court’s 1972 summary dismissal without opinion of a gay couple’s marriage lawsuit from Minnesota in Baker v. Nelson was no longer binding precedent.  He then turned to whether the plaintiffs had shown a likelihood that they would prevail on their equal protection claim, their fundamental right to marry claim, or both.

Under equal protection, the court followed several others that have decided recently challenges to marriage exclusions in not definitively resolving the doctrinal test to apply.  It considered the factors commonly taken as bearing on how suspicious courts should be of sexual orientation discrimination, that is, what level of scrutiny it should apply (“rational basis review,” a “heightened” or “intermediate scrutiny” less deferential to the government, or a very skeptical “strict scrutiny”).  It found, and this was hardly disputable, that  gay and lesbian people “have been subjected to a long history of discrimination.”  The court doesn’t definitively make a factual finding, but merely notes, that “Plaintiffs argue that, like other suspect classifications, sexual orientation has no ‘relation to [the] ability’ of a person ‘to perform or contribute to society.’”  Citing previous equal protection litigation, the court concluded that “Furthermore, the scientific consensus is that sexual orientation is an immutable characteristic.”  And fourth, the court reasoned that “the history of same-sex marriage bans across the nation illustrates the historical lack of political power possessed by gays and lesbians.”  Although these factors all pointed toward one of the less deferential forms of review and the court adjudged the plaintiff’s arguments “compelling,” Judge Garcia concluded that “it is not necessary to apply heightened scrutiny to Plaintiffs’ equal protection claim since Texas' ban on same-sex marriage fails even under the most deferential rational basis level of review.”

The court rejected the state’s claim that excluding same-sex couples from marriage was rationally related to ensuring that children would be raised by a father and mother or encouraging “stable family environments for responsible procreation.”  Besides pointing out the illogic and utter lack of evidence for such contentions, the court quoted and followed other recent courts on these point, such as those holding Utah’s and Oklahoma’s discriminatory marriage laws unconstitutional.  (Like many other marriage cases, it also quoted one of Justice Scalia’s dissents, the one from Lawrence v. Texas where he had reasonably suggested that “the encouragement of procreation” could not justify denying marriage to same-sex couples “since the sterile and elderly are allowed to marry.”)  Indeed, the court noted that excluding same-sex couples from marriage affirmatively harms the children they are raising or may have.  And, again like other courts, Judge Garcia rejected appeals to tradition.  For these reasons, the court concluded that Texas’s marriage exclusion was “unconstitutional because without a rational relationship to a legitimate governmental purpose, it denies same-sex couples the benefits, dignity and value of celebrating marriage and having their out-of-state marriage recognized.”  So, although the court technically only had to rule that the plaintiffs were likely to win on their constitutional claim, its actual reasoning appears to be that plaintiffs have established their claim, which leaves little or nothing for it to do next to render a final judgment in their favor.

Curiously, the court said that because plaintiffs showed they were likely to win on their equal protection claims it need not address their other constitutional claim, but then proceeded to address it anyway.  On the plaintiffs due process claim, the court reasoned that marriage is a fundamental right, that it is “the right to marry the partner of one’s choosing,” and thus that same-sex couples were not seeking a new putative “right to same-sex marriage” just as the Supreme Court did not frame the right at issue in Loving v. Virginia as a “right to interracial marriage.”  Because the state was completely denying this fundamental right to same-sex couples, it had to survive strict scrutiny.  But because its marriage exclusion was not even rationally related to a legitimate governmental interest, it necessarily was not narrowly tailored to a compelling governmental interest, the test of strict scrutiny.

Turning to Texas’s refusal to recognize marriages of same-sex couples from other jurisdictions, the court treated this as implicating a right to marriage recognition separate from the right to marry.  Finding Windsor to give inadequate guidance as to the proper level of scrutiny, the court found it sufficient to apply rational basis review because the state’s law could not survive even that deferential review.  It did not matter that Section 2 of DOMA, not ruled on in Windsor, purports to give states permission to refuse recognition of the marriages of same-sex couples, for “’Congress does not have the power to authorize the individual States to violate the Equal Protection Clause,’” the court concluded, quoting the Supreme Court’s 1971 decision in Graham v. Richardson.

Following the foregoing analyses on the merits, it took the court only a few pages to establish that the plaintiffs were entitled to a preliminary injunction.  They had established a likelihood of prevailing on the merits of their constitutional claims.  They were being irreparably injured by being denied the right to marry or recognition of their marriage, resulting in the denial of countless rights and obligations.  The balance of equities favored the plaintiffs over the state, and it would be in the public interest to issue the injunction, since the laws were unconstitutional (or at least likely unconstitutional) and since the court was not yet changing the status quo, instead staying its own injunction until after appeals are finished.

There was little new in this next step on the path to marriage equality across the nation.  And the court’s opinion did not contain the rhetorical flourishes seen in some other recent marriage decisions.  That in itself may be an encouraging sign, for it may reflect a shift from viewing the establishment of same-sex couples’ marriage rights as historically momentous to viewing it as a matter of course, merely the clear requirement of our nation’s constitutional commitment to equality.  In all likelihood, it is both.

Friday, February 14, 2014

Federal Court Holds Virginia Ban on Same-Sex Couples’ Marrying Unconstitutional

“Now that the weight has lifted/Love has surely shifted in my way”

The Valentine’s Day presents just keep coming:  One day after a federal court in Kentucky held unconstitutional the state’s refusal to recognize marriages same-sex couples validly entered in other states (discussed on CruzLines here), a federal trial judge ruled late on February 13 that Virginia’s laws denying recognition of same-sex couples’ marriages and barring same-sex couples from marrying violate the U.S. Constitution.  Judge Arenda L. Wright Allen held in Bostic v. Rainey that Virginia’s discriminatory marriage laws violated same-sex couples’ fundamental right to marry protected by the Due Process Clause as well as their rights under the Equal Protection Clause (both under the Fourteenth Amendment to the Constitution).  This makes “A perfect record for equality post-Windsor” (referring to the Supreme Court’s June 2013 decision in United States v. Windsor striking down part of the federal “Defense of Marriage Act” or DOMA), as David Cohen and Dahlia Lithwick have detailed.

The suit was pursued by two long-term, same-sex, Virginia couples, two men who were denied a marriage license in Virginia and two women who married in California but have not been able to have Virginia recognize their marriage.   This is the Virginia marriage case whose legal team Ted Olson and David Boies joined; another, certified as a class action, is being litigated by the ACLU.  Here, the district court granted the plaintiffs summary judgment, agreeing with the parties that a full trial was unnecessary.

Rightly rejecting a potpourri of mildly to extremely desperate arguments advanced by the county clerk defendants to try to get the case dismissed  (such as the counterfactual claim that the male plaintiffs had not sought a marriage license), the trial judge turned to the merits of the plaintiffs’ constitutional arguments.  Quoting the federal judge who held Utah’s marriage ban unconstitutional, she rejected the argument that the plaintiffs were seeking a new right to same-sex marriage:  “Plaintiffs ask for nothing more than to exercise a right that is enjoyed by the vast majority of Virginia's adult citizens.  They seek ‘simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond.’”  Because marriage is a fundamental right, the court then applied strict scrutiny to review Virginia’s laws.

The judge dismissed a curious appeal to tradition as a way to keep people from marrying not out of love but just to qualify for benefits because the argument lacked even a rational basis.  “Virginia’s purported interest in minimizing marriage fraud is in no way furthered by excluding one segment of the Commonwealth’s population from the right to marry based upon that segment’s sexual orientation.”  More generally, the court found tradition inadequate because it read Justice Kennedy’s opinion in Lawrence v. Texas (which cited Loving v. Virginia for this point) as denying that “that a prevailing moral conviction can, alone, justify upholding a constitutionally infirm law.”  The trial court saw that “[n]early identical concerns about the significance of tradition were presented to, and resolved by, the Supreme Court in its Loving decision.”  Recognizing “the undeniable value found in cherishing the heritages of our families, and many aspects of the heritages of our country and communities,” the court nonetheless appealed to the opinion for the Court jointly authored by Justice Kennedy (with Justices O’Connor and Souter) in Planned Parenthood v. Casey, which reaffirmed “the essential holding” of Roe v. Wade and taught, the district court believed, that “the protections created for us by the drafters of our Constitution were designed to evolve and adapt to the progress of our citizenry.”

The court also denied that federalism and respect for states’ prerogatives should insulate Virginia’s marriage laws from judicial invalidation.  It noted that Windsor insisted that “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons,” a proposition for which the Supreme Court cited Loving v. Virginia.  This citation, the trial court here agreed with the federal judge who held Oklahoma’s marriage law unconstitutional, was “a disclaimer of enormous proportion.”  And the trial court joined those judges who have approvingly cited Justice Scalia’s dissent in Windsor for the proposition that the logic of Windsor renders state marriage laws excluding same-sex couples as unconstitutional as the provision of DOMA at issue in Windsor.

Judge Allen then rejected the suggestion that she should stay out of the matter to let the legislature or people of Virginia to act to open marriage to same-sex couples such as the plaintiffs.  “The proposal disregards the gravity of the ongoing significant harm being inflicted upon Virginia’s gay and lesbian citizens.  Moreover, the proposal ignores the needless accumulation of that pain upon these citizens, and the stigma, humiliation and prejudice that would be visited upon these citizens’ children, as they continue to wait for this possibility to become realized.”  Because constitutionalism is supposed to restrain majorities, she found judicial intervention warranted here.

The trial court also concluded that the variety of arguments offered by defendants and some professor amici (“friends of the court” interested in the matter and offering their views) that excluding same-sex couples from marriage for the sake of children failed not only strict scrutiny but even much more lenient rational basis review.  Regardless of the possible legitimacy of the various interests, the court did not see any way in which Virginia’s marriage exclusion was rationally related to those interests.  Agreeing with the federal courts that recently found Utah’s and Oklahoma’s discriminatory marriage laws unconstitutional, the court here appreciated that “recognizing a gay individual's fundamental right to marry can in no way influence whether other individuals will marry, or how other individuals will raise families.”  And Judge Allen sharply rebuked the county clerk who chose to intervene to defend the state’s marriage laws for contending that the plaintiffs were asking the court to “make a policy in this state that mothers and fathers [do not] matter.”  “This is a profound distortion of what Plaintiffs seek. Plaintiffs honor, and yearn for, the sacred values and dignity that other individuals celebrate when they enter into marital vows in Virginia, the judge wrote, “and they ask to no longer be deprived of the opportunity to share these fundamental rights.  Like other judges, she found the procreation-focused arguments inadequate to justify the exclusion from marriage.  (It helped, as the court noted in its equal protection analysis, that the discriminatory marriage law “itself … declared that marriage should be limited to opposite-sex couples “whether or not they are reproductive in effect or motivation.”)

Under the Equal Protection Clause, the court did as others have recently:  it suggested that heightened scrutiny should apply to sexual orientation discrimination – in part because of a variety of anti-gay actions in Virginia’s recent (and, one could add, older) history – but it did not have to embrace or reject the plaintiffs “compelling” arguments on this score because, as the judge had already concluded, “Virginia's Marriage Laws fail to display a rational relationship to a legitimate purpose, and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny.”

Accordingly, the trial court “conclude[d] that Virginia’s Marriage Laws unconstitutionally deny Virginia’s gay and lesbian citizens the fundamental freedom to choose to marry.  Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country's cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family.”  The court enjoined enforcement of the laws, but taking an understandably cautious approach stayed her judgment to allow time for an appeal to be completed in the U.S. Court of Appeals.

Although relatively new Judge Allen’s prose might at points benefit from being taken down a notch on the purple spectrum, she opened her opinion movingly with these beautiful words from Mildred Loving (of Loving v. Virginia fame), with which I’ll close here:
We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match.  Isn’t that what marriage is? . . .  I have lived long enough now to see big changes.  The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.  Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry.  I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry.  Government has no business imposing some people’s religious beliefs over others. . .  I support the freedom to marry for all.  That's what Loving, and loving, are all about. 

Federal Court Holds Kentucky Non-Recognition of Same-Sex Couples’ Marriages Unconstitutional

“And my love’s too strong/to let you go”

In a thoughtful and interesting opinion, Judge John G. Heyburn II, a federal trial judge in Kentucky, ruled in Bourke v. Beshear on February 12, 2014, that the state’s statutory and constitutional provisions refusing to recognizing marriages of same-sex couples validly entered in other jurisdictions violate the U.S. Constitution.  That makes it the fourth federal court to find constitutional problems with discriminatory marriage bans in the wake of the Supreme Court’s United States v. Windsor decision last June striking down part of the so-called Defense of Marriage Act (DOMA).  This Valentine’s gift to same-sex couples in the Bluegrass State and supporters of marriage equality across the land offers the Supreme Court one more piece of evidence that the time is rapidly coming to hold that non-recognition of same-sex couples’ marriage and that all laws excluding same-sex couples from marriage are unconstitutional, period.

In this case brought by four same-sex couples (one of them together 44 years!), each married validly outside Kentucky, the court concluded that the state’s non-recognition violated the Equal Protection Clause of the Constitution.  Its doctrinal analysis broke little to no new ground.  The court didn’t need to rule on a variety of the plaintiff’s constitutional claims, such as applicability of the fundamental constitutional right to marry to same-sex couples, since it found the plaintiffs won on equal protection grounds.  After setting forth some of the arguments why a less deferential, heightened form of equal protection scrutiny might be appropriate, the court decided it did not need to apply more than rational basis review, the most deferential of the three tiers of scrutiny applicable to discrimination alleged to violate equal protection rights, because Kentucky’s action could not survive even that lenient form of review.  The state’s asserted interest in “preserving the state’s institution of traditional marriage” was not sufficient, nor were “traditional” family organization The Family Trust Foundation of Kentucky (which does business as The Family Foundation of Kentucky)’s proffered interests in “responsible procreation and childrearing, steering naturally procreative relationships into stable unions, promoting the optimal childrearing environment, and proceeding with caution when considering changes in how the state defines marriage.”

It should be noted that this case only presented a challenge to Kentucky’s refusal to recognize marriages of same-sex couples legally entered elsewhere.  None of the plaintiffs were seeking the right to be married in Kentucky.  Thus, the trial court wrote, it “was not presented with the particular question whether Kentucky’s ban on same-sex marriage is constitutional.  However, there is no doubt that Windsor and this [c]ourt’s analysis suggest a possible result to that question.”  In Judge Heyburn’s view, then, the principles and reasoning of Windsor not only translate from a challenge to federal refusal to recognize a same-sex couple’s validly entered marriage to a challenge to a state’s refusal to recognize such a marriage, to (in a future case) a state’s refusal to let such a couple marry.

Perhaps more interesting than its constitutional analysis were the trial court’s rhetorical moves.  Judge Heyburn took pains at the outset to emphasize that the suit was about civil marriage, and that while it may implicate “issues of [religious] faith, beliefs, and traditions,” “[o]ur Constitution was designed both to protect religious beliefs and prevent unlawful government discrimination based upon them.”  After his analysis leading to the conclusion that Kentucky’s refusal to recognize validly entered marriages of same-sex couples, he reassured the public that “no court can require churches or other religious institutions to marry same-sex couples or any other couple, for that matter.  This is part of our constitutional guarantee of freedom of religion.”  At the same time, however, the judge emphasized that “[o]nce the government defines marriage and attaches benefits to that definition, it must do so constitutionally.…  Assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons.”  (He tactfully consigned the over religious foundation for Kentucky’s discriminatory marriage amendment espoused by the measure’s sponsor to footnote 15 of his opinion.)

Also worth noting were the court’s conscious efforts to situate its decision in a broader historical context.  “No case of such magnitude arrives absent important history and narrative,” Judge Heyburn wrote in the first part of his opinion.  He traced how “gradual changes in our society, political culture and constitutional understandings have encouraged some [same-sex couples] to step forward and assert their rights,” from suits in Kentucky and other states rejecting marriage claims in the early 1970s; through the Hawai`i Supreme Court’s 1993 decision (some “[t]wenty-one long years later,” he wrote in a sign of appreciation of the daily toll of marriage discrimination on same-sex couples and families they head) in Baehr v. Lewin holding that state’s exclusion of same-sex couples from marriage to be discriminatory in in need of justification; through DOMA and other deliberate legislative and constitutional steps (again, in Kentucky and elsewhere) to assure the denial of marriage and marriage rights to same-sex couples in the wake of Baehr; up to the last ten years’ “virtual tidal wave of legislative enactments and judicial judgments in other states [that] have repealed, invalidated, or otherwise abrogated state laws restricting same-sex couples’ access to marriage and marriage recognition.”

The judge was also at pains to note that his analysis of the issues is not aberrational.  “Nine state and federal courts have reached conclusions similar to those of this Court,” he noted, starting with the pathbreaking Massachusetts decision in Goodridge v. Department of Public Health in 2003.  “Over the last several months alone, three federal district courts have issued well-reasoned opinions supporting the rights of non-heterosexual persons to marriage equality in similar circumstances,” he noted.  “Indeed, to date, all federal courts that have considered same-sex marriage rights post-Windsor have ruled in favor of same-sex marriage rights. This Court joins in general agreement with their analyses.”

The trial court also made a point of rejecting any suggestion that he might be doing something improper, or that these various courts were “creating new rights.”  Citing Justice Kennedy’s opinion for the Supreme Court in Lawrence v. Texas, he wrote:
     the right to equal protection of the laws is not new.  History has already shown us that, while the Constitution itself does not change, our understanding of the meaning of its protections and structure evolves.  If this were not so, many practices that we now abhor would still exist.
     Contrary to how it may seem, there is nothing sudden about this result.  The body of constitutional jurisprudence that serves as its foundation has evolved gradually over the past forty-seven years. mThe Supreme Court took its first step on this journey in 1967 when it decided the landmark case Loving v. Virginia, which declared that Virginia’s refusal to marry mixed-race couples violated equal protection. The Court affirmed that even areas such as marriage, traditionally reserved to the states, are subject to constitutional scrutiny and “must respect the constitutional rights of persons.” Windsor, 133 S.Ct. at 2691 (citing Loving).
... 
     In Romer, Lawrence, and finally, Windsor, the Supreme Court has moved interstitially, as [Justice] Holmes said it should, establishing the framework of cases from which district judges now draw wisdom and inspiration.  Each of these small steps has led to this place and this time, where the right of same-sex spouses to the state-conferred benefits of marriage is virtually compelled. 

[edited Feb. 14, 2014 to correct link to opinion]

Tuesday, January 21, 2014

Sexual Orientation Discrimination Against Jurors Gets Heightened Scrutiny, Unconstitutional, Ninth Circuit Court of Appeals Holds

“We are all our own jury,/some day we’ll be put on trial.”

In a unanimous opinion authored by Judge Stephen Reinhardt, the U.S. Court of Appeals for the Ninth Circuit held that peremptory strikes of potential jurors on the basis of their sexual orientation is unconstitutional.  The court’s opinion in SmithKline Beecham Corp., dba GlaxoSmithKline v. Abbot Laboratories, decided January 21, 2014, may ultimately be even more significant for its holding that sexual orientation discrimination challenged under the Equal Protection Clause is subject to heightened scrutiny, not mere rationality review, a holding that goes beyond what the Ninth Circuit had said in Judge Reinhardt’s opinion in the Proposition 8 litigation (Perry v. Brown, holding California’s constitutional amendment stripping same-sex couples of the right to marry violated federal Equal Protection Clause because it could not survive even rational basis review).

The litigation began when SmithKline Beecham sued Abbot Labs over a dispute regarding a licensing agreement and the pricing of HIV meds (something Abbott dramatically raised following its agreement with SmithKline).  The case went to trial, and defendant Abbot used its first peremptory strike to remove a potential juror who indicated that he had a male partner.  The court’s opinion refers to him as “the only self-identified gay member of the venire,” but it cites no evidence other than the male juror candidate’s statements and pronouns referring to his partner, so he may well have been bisexual, a possibility the opinion fails to mention.  Either way, a strike of him because he was gay or bisexual would have been a strike based on his sexual orientation, so the court’s ultimate conclusion probably is unaffected by its assumption.

Although peremptory strikes differ from strikes “for cause” in that they do not require a striking attorney to identify bias on the part of the potential juror, they cannot be exercised for constitutionally impermissible reasons.  The Supreme Court held in Batson v. Kentucky (1986) that peremptory strikes based on race violate the Equal Protection Clause.  It subsequently extended that holding to cover peremptory strikes regardless of whether it’s a prosecutor or a defense attorney striking, and whether it’s a criminal or a civil case.  In J.E.B. v. Alabama ex rel. T.B. (1994) the Supreme Court extended Batson to hold that equal protection also forbids jury strikes based on sex.  It has not yet considered the question whether the same is true of strikes based on sexual orientation.

A significant part of the answer to that question is whether sexual orientation discrimination is generally subject to heightened scrutiny or just rational basis review under the Equal Protection Clause.  (J.E.B. said that where discrimination against a group receives only rational basis review, jury strikes on that basis do not violate equal protection.)  But that too is a question the Supreme Court has not expressly answered.  In its highest profile ‘gay rights’ cases – Romer v. Evans (1996), which invalidated an anti-lesbigay amendment to Colorado’s state constitution under the federal Equal Protection Clause, Lawrence v. Texas (2003), which struck down Texas’s same-sex only ban on oral and anal sex under the federal Due Process Clause , and United States v. Windsor (2013), which held that the section of the “Defense of Marriage Act” that ignored lawful marriages of same-sex couples violated equal protection – the Supreme Court has repeatedly failed to name and so definitively resolve the level of scrutiny that equal protection demands when government discriminates on the basis of sexual orientation.

Admitting this, the panel opinion had to decide whether sexual orientation discrimination is subject to heightened scrutiny.  Earlier Ninth Circuit precedent concerning the military’s “Don’t Ask, Don’t Tell” had faced a similar question regarding Lawrence v. Texas.  In Witt v. Department of the Air Force, the Court of Appeals had to decide what kind of scrutiny applied to the military exclusion of lesbigay people under the Due Process Clause.  Lawrence did not say, so the Court of Appeals had to look to “what the Court actually did,” that is, what kind of analysis it conducted.  Doing likewise here to make sense of Windsor’s equal protection holding, the Ninth Circuit concluded that Windsor’s analysis was inconsistent with the great deference and mandatory consideration of hypothetical state purposes required under minimal rational basis review.  Accordingly, the Ninth Circuit panel determined that heightened scrutiny applies under the Equal Protection Clause to sexual orientation discrimination.  Judge Reinhardt’s opinion also held that earlier Ninth Circuit case law applying only rational basis review to sexual orientation discrimination challenged as violating equal protection was no longer good law because of the Supreme Court’s decision in Windsor.  (Minor quibble: the panel’s opinion says that the Supreme Court in Lawerence v. Texas recognized one Supreme Court decision, Department of Agriculture v. Moreno (1973), as applying “a more searching form of rational basis review,” when it was only Justice O’Connor’s opinion concurring in the judgment that espoused that position.)

Then, acknowledging that the histories of discrimination against racial minorities, against women, and against lesbigay vary (actually, the court again ignored bisexual persons to focus on “gays and lesbians”), and that gay and lesbian people were not openly excluded from juries the same way women (of any races) and African Americans (of any gender) were, the court recounted some of the pervasive discrimination lesbigay people have historically faced in the U.S. in governmental employment, immigration law, and military service, grounded in degrading stereotypes.  This helped establish that anti-lesbigay jury strikes stem from and cause the same kinds of injustices, for individuals, groups, and the entire polity, that warrant interpreting equal protection to forbid race- and sex-based strikes:
 “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 Court of Appeals also rejected Abbott’s exhortation not to extend Batson to sexual orientation-based strikes in order to protect individuals’ privacy rights.  The court thought those concerns significant, but was confident that the privacy of potential jurors can be protected through other means.  The court also rejected Abbot’s argument that it should not reach the Batson extension issue because none of SmithKline’s legal claims should have been allowed to reach the jury.  The Ninth Circuit Court of Appeals recognizes no harmless error exception to Batson violations, and even if there were, at least one of those claims required jury trial, the court held, but the jury was tainted by the discriminatory strike.  Accordingly, the court reversed the trial court and remanded the case for a new jury trial.


If the reasoning of the court of appeals is sustained, it could have big implications for anti-lesbigay discrimination, including laws excluding same-sex couples from civil marriage.  It is not clear whether the full Ninth Circuit would likely vote for review by an en banc panel of eleven judges or whether the Supreme Court would be likely to grant review, should Abbot seek either.  There is no real conflict between Court of Appeals holdings on this, with the Ninth Circuit breaking new ground here.  The Court does not choose to hear “gay rights” cases very frequently, and it just decided Windsor in June of 2013.  On the other hand, it only takes four Justices to vote to grant review, and some Justices could feel that it might be good to decide the general equal protection level-of-scrutiny issue in a factual context that probably divides the U.S. public less than does the issue of marriage for same-sex couples.  The Supreme Court ducked that general question in Windsor; only time will tell whether it chooses to take it up in the jury service context.