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.