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.

Appeals Court Vacates Historic Decision Against “Don’t Ask, Don’t Tell”

“Emptiness and misery/Took it all away ya see/Yes… bitter”

Just one day after briefing was completed, the United States Court of Appeals for the Ninth Circuit has invalidated U.S. District Judge Virginia Phillips’s historic October 2010 decision holding that the federal statute and regulations known as “Don’t Ask, Don’t Tell” (DADT) were unconstitutional.   Unless this decision (available here) is reversed by a larger panel of Ninth Circuit judges (or, even less likely, by the Supreme Court), the legal effects of the trial court’s decision will be erased.

The federal government had appealed the district court decision invalidating DADT.  After Congress authorized repeal of the policy excluding openly lesbigay persons from military service, the government argued that the district court’s judgment should be vacated, wiping it out as if it had never been issued.  This summer, the Ninth Circuit directed the Log Cabin Republicans to file briefs showing why their lawsuit was not moot in light of the repeal of DADT.  The Log Cabin Republicans and various amici (“friends of the court”) organizations, including Lambda Legal and Servicemembers Legal Defense Network, filed briefs explaining why, even with DADT repealed, that unconstitutional policy continues to have legal consequences on those who have served and been expelled, so that the dispute should not be considered moot.

The eager-beaver panel of three Ninth Circuit judges, however, rejected these arguments, taking an exceedingly narrow view of the circumstances under which federal courts can continue to adjudicate a case once an underlying statute has been repealed.  Reagan appointee Diarmuid O’Scannlain was apparently so unhappy with his inability to reach the merits of the appeal that he cast aside the majority’s posture of judicial restraint and chose to concur with an advisory opinion explaining why he would have held that the district court was wrong to rule DADT unconstitutional.  He attempted to defend this move as giving guidance to district court judges about how to handle claims of unenumerated right, but it is fundamentally in tension with numerous, long-standing pronouncements that federal court judges simply lack the constitutional power to give advisory opinions.

If it stands, the Ninth Circuit’s ruling “vacate[s] the district court’s judgment, injunction, opinions, orders, and factual findings—indeed, all of its past rulings.”  Other litigation over DADT, such as the recent class action suit challenging the reduction by half of the post-separation payments received by servicemembers ejected pursuant to DADT, will have to start from scratch, as the Ninth Circuit intended:  “Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect.”

One can only hope that an en banc panel of the Ninth Circuit may take a more realistic view of the ongoing ramifications of the now-repudiated DADT policy and reinstate the district court’s important decision.

Don't Ask, Don't Tell Enjoined, Again

"I'll be true to you in the whole world"

The United States Court of Appeals for the Ninth Circuit has lifted the stay of Judge Virginia Phillips worldwide injunction of "Don't Ask, Don't Tell" entered in October 2010 after trial in a case brought by the Log Cabin Republicans.  In an order (here) by a three-judge panel comprising Chief Judge Alex Kozinski and Circuit Judges Kim McLane Wardlaw and Richard Paez, the court put the injunction back into place against the military exclusion policy.  Theoretically, a lesbigay person could right now (as of my writing this afternoon, Wednesday, July 6) go into a recruiter's office, identify as lesbian, gay, or bisexual, and be allowed to enlist or start the process.

Interestingly, one of the factors to which the court pointed in its analysis was the  Department of Justice's July 1, 2011 brief in Karen Golinkski's federal lawsuit seeking to have the Defense of Marriage Act or DOMA declared unconstitutional.  The Obama administration followed up its February 2011 announcement that it would not defend DOMA because the law is unconstitutional under the heightened scrutiny that the Justice Department concluded applies (see entry here).  DOJ's brief in Golinksi affirmatively argues this position, at more length than Attorney General Holder did back in February.  Although the brief contains a footnote distinguishing the military context from the marital context, it was the brief's position on heightened scrutiny that the Ninth Circuit relied on in reinstating the injunction against "Don't Ask, Don't Tell."

What still remains to be seen is the Obama administration's response.  It had originally sought the stay of the injunction to give the military time to prepare an orderly transition.  Now, the Ninth Circuit panel concluded that the military has had enough time, most of the enlisted servicemembers have been trained in preparation for the final repeal of "Don't Ask, Don't Tell" (whose repeal Congress authorized), and the balance of hardships has tipped back in favor of those whose constitutional rights are being violated daily by the continued enforcement of the military exclusion.  The Administration could seek to have a stay re-entered.  A request for a larger panel of Ninth Circuit judges to rehear the case "en banc" seems unlikely, as such an 11-judge panel would automatically include Chief Judge Kozinski if it follows the same rules for rehearings of merits decisions (as contrasted with this procedural decision).  So any appeal seems more likely to be made to Anthony Kennedy, the Supreme Court Justice in charge of emergency motions from the Ninth Circuit, or to the full U.S. Supreme Court.  Whether they would reimpose a stay when the underlying statute is clearly not long for this world and the military is close to final repeal is a different matter.  And it's also unclear why the Justice Department might want to seek an appeal under these circumstances, though a general sense that the military does not like courts telling it what to do could be a consideration.

[edited to add link to the order lifting the stay, 8:24 p.m. PDT 20110706]

Don't Ask, Perhaps Tell?

The United States Court of Appeals for the Ninth Circuit revived a lawsuit brought by the ACLU of Washington (state) challenging the constitutionality of the “Don’t Ask, Don’t Tell” policy (DADT) excluding openly lesbian, gay, or bisexual (collectively, “lesbigay”) persons from the U.S. military. The district court had dismissed the suit by the much decorated Major Witt challenging the constitutionality of her suspension from duty as an Air Force reservist nurse because of her relationship with a civilian woman. In Margaret Witt v. Department of the Air Force (9th Cir. May 21, 2008) (opinion also here), a three-judge panel held that the Air Force should be required on remand to satisfy a heightened form of scrutiny under the Due Process Clause of the Fifth Amendment. A 2-1 majority regarded the panel as bound by earlier Ninth Circuit precedent holding that DADT does not violate the Equal Protection Clause under what the court held was the applicable rational basis review.

Witt is important because it concludes that an earlier Ninth Circuit decision upholding a precursor to the DADT policy under heightened scrutiny under the Due Process Clause was “no longer good law” in light of the Supreme Court’s decision in Lawrence v. Texas (2003). In particular, the Ninth Circuit panel majority held that “Lawrence applied something more than traditional rational basis review.” (It rejected the contrary interpretation adopted by Lofton v. Secretary of Department of Children & Family Services, 358 F.3rd 804 (11th Cir. 2004), concluding that “the Eleventh Circuit failed to appreciaate both the liberty interest recognized by Lawrence and the heightened-scrutiny balancing employed by Lawrence.”) As a consequence, Witt held, “when the government attempts to intrude upon the personal and private lives of homosexuals [sic], in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interests, the intrusion must significantly further that interest, and the intrusion must be necessary to further that int. In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest.”

Unfortunately, the Ninth Circuit majority also held “that this heightened scrutiny analysis is as-applied rather than facial.” As a result, the trial court on remand could determine that application of DADT to Major Witt violated her substantive due process rights, but may not be free to hold the policy facially unconstitutional.

Judge Canby concurred in part and dissented part. In his view, the court did not go far enough. It should have held that Lawrence undermined both the Ninth Circuit’s due process cases and its equal protection cases upholding the military exclusion of lesbigay persons. After all, when the Ninth Circuit Court of Appeals originally held that rational basis review was the proper standard for challenges to the military exclusion, the court relied on the Supreme Court’s decision in Bowers v. Hardwick (1986) – which Lawrence v. Texas overruled in 1993! Moreover, Judge Canby argued, consistently with his longstanding view (see, e.g., High Tech Gays v. DISCO, 909 F.2d at 376-80 (9th Cir. 1990) (Canby, J., dissenting from denial of rehearing en banc), that strict scrutiny should be the governing standard both under the Fifth Amendment’s Due Process Clause and under the equal protection guarantee embodied in that clause.

Even though the Ninth Circuit panel did not embrace Judge Canby’s persuasive opinion, its recognition that DADT intrudes upon the constitutionally protected liberty of lesbigay persons in troublesome ways is encouraging, as is its holding that Major Witt should have her day in court to challenge her dismissal.