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.

Court Holds Oklahoma Marriage Exclusion Unconstitutional

“Brand new state, gonna treat you great!”

U.S. District Court judge Terence C. Kern, appointed a federal trial judge in 1994, held on January 14, 2014 that Oklahoma’s exclusion of same-sex couples from marriage, enshrined in its state constitution in 2004, violates the Equal Protection Clause of the U.S. Constitution.  That’s a lot of anniversaries in that sentence, and, if the decision is upheld on appeal – he stayed his orders in light of the Supreme Court’s having stayed the judicial injunction against Utah’s marriage exclusion – it will eventually lead to anniversary celebrations for same-sex couples in the Sooner State (the sooner the better!).

(AP Photo/Tulsa World, James Gibbard)

Two lesbian couples, Gay Phillips and Sue Barton, and Mary Bishop and Sharon Baldwin, filed a federal lawsuit in 2004 challenging both Oklahoma’s exclusion of same-sex couples from marriage and the federal “Defense of Marriage Act” (“DOMA”) as violating their constitutional right to marry and right to equal protection of the laws.After a long procedural history, Judge Kern dismissed the challenge to DOMA’s definition of marriage as different-sex because the Supreme Court already ruled that unconstitutional in June 2013; dismissed the challenge to DOMA’s section purporting to give states permission not to recognize marriages of same-sex couples from other jurisdictions, concluding that it was not causing Oklahoma to deny the couples marriage licenses; and held that Oklahoma’s marriage ban lacked a rational basis for denying marriage to same-sex couples and so violated equal protection.  (The court therefore did not reach the question whether the ban also violates the fundamental right to marry protected by the Constitution’s Due Process Clause.  The court also dismissed the challenge to the Oklahoma provision denying recognition to valid marriages of same-sex couples from other jurisdictions because it concluded the plaintiffs had sued the wrong defendants, who lacked authority to “recognize” any out-of-state marriages.)

The court properly concluded that the Supreme Court’s summary (without opinion) affirmance in 1972 in Baker v. Nelson of a decision rejecting constitutional challenges to Minnesota’s exclusion of same-sex couples from marriage did not require courts today to reject such cases; the Supreme court’s equal protection jurisprudence has evolved too much for Baker’s unexplained decision to be binding any more.  The Court also concluded that the Supreme Court’s decision striking down DOMA’s heterosexual-only definition of marriage in Windsor did not directly dictate a conclusion either way.  Unlike DOMA, Oklahoma’s marriage law did not involved an unusual federal intrusion into the regulation of marriage, something traditionally conducted by states, so the court here viewed Oklahoma’s law with less suspicion than the Supreme Court had for DOMA.  On the other hand, the trial court here in the Bishop case correctly appreciated that Windsor says even state definitions of marriage must not violate federal constitutional rights, and it read Windsor to caution against accepting invocation of tradition that might be “a guise for impermissible discrimination against same-sex couples.”

In its equal protection analysis, the trial court somewhat gratuitously rejected the argument that Oklahoma’s marriage exclusion should be analyzed as sex discrimination, as the federal trial court in Utah had recently concluded.  Instead, because he saw the law as discriminating against same-sex couples, he judged it tantamount to sexual orientation discrimination.  Tenth Circuit Court of Appeals precedent treats sexual orientation discrimination as not suspect of even quasi-suspect, so courts examine it using only the deferential standard of “rational basis review” (instead of a more skeptical “heightened,” “intermediate,” or “strict scrutiny”).

Yet, the court concluded, Oklahoma’s marriage exclusion failed even “deferential rationality review.”  Assuming for sake of argument “that Oklahoma has a legitimate interest in encouraging “responsible procreation,’ (i.e., procreation within marriage), and in steering ‘naturally procreative’ relationships into marriage, in order to reduce the number of children born out of wedlock and reduce economic burdens on the State,” the court nonetheless found no rational connection between Oklahoma’s marriage ban and these interests.  Couples need not want or even be able to procreate in order to marry; letting same-sex couples marry would “not harm, erode, or somehow water-down the ‘procreative’ origins of the marriage institution, any more than” allowing couples who could not or did not want themselves to procreate “naturally”; marriage would still offer the same incentives to couples who might contemplate such procreation; and especially in light of the fact that same-sex couples do have and raise children by various means, Oklahoma’s “purported justification simply ‘makes no sense’ in light of how Oklahoma treats other non-procreative couples” who want to marry.  Even if same-sex couples are not as likely to have an accidental pregnancy as different-sex couples, that does not provide the constitutionally required rational basis: “the state’s exclusion of only same-sex couples in this case is so grossly underinclusive that it is irrational and arbitrary.”  Although it is deferential, “[r]ationality review has a limit, and this [argument] well exceeds it.”

The trial court also rejected the notion “that excluding same-sex couples is rationally related to the goal of ‘promoting’ the ‘ideal’ family unit.”  The court observed that “[e]xclusion from marriage does not make it more likely that a same-sex couple desiring children, or already raising children together, will change course and marry an opposite-sex partner” nor could the judge “discern from any of [the defendant’s] cited materials, how exclusion of same-sex couples from marriage makes it more likely that opposite-sex marriages will stay [intact].”  Chiding the state or at least suggesting hypocrisy, the court noted that “[e]xcluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, as Oklahoma consistently has one of the highest divorce rates in the country.”  (Snap!)

Relying on a publication from the conservative Witherspoon Institute, the defense also argued “that “it is rational for Oklahoma voters to believe that fundamentally redefining marriage could have a severe and negative impact on the institution as a whole.”  The court rejected this fearmongering “negative-impact’ argument” as “impermissibly tied to moral disapproval of same-sex couples as a class….’   In language echoing (though without citing) Justice Alito’s defense in Windsor, where Alito would have upheld DOMA on the grounds that voters could supposedly permissibly choose between a “traditional,” “conjugal” view of marriage and a “newer,” “consent-based view,” the district court noted that “[a]ll of these perceived ‘threats’ are to one view of the marriage institution – a view that is bound up in procreation, one morally ‘ideal’ parenting model, and sexual fidelity.”  But a serious problem with this line of defense of the exclusion of same-sex couples from marriage is that “civil marriage in Oklahoma is not an institution with ‘moral’ requirements for any other group of citizens:

“With respect to marriage licenses, the State has already opened the courthouse doors to opposite-sex couples without any moral, procreative, parenting, or fidelity requirements.  Exclusion of just one class of citizens from receiving a marriage license based upon the perceived ‘threat’ they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class.  It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships.”

Accordingly, the trial court held Oklahoma’s marriage discrimination against same-sex couples to be an unconstitutional deprivation of the equal protection of the laws commanded by the Fourteenth Amendment to the U.S. Constitution.  “Equal protection is at the very heart of our legal system and central to our consent to be governed.  It is not a scarce commodity to be meted out begrudgingly or in short portions.  Therefore, the majority view in Oklahoma must give way to individual constitutional rights.”  Indeed.