9th Circuit Ruling Could Benefit Gays and Provide For Heightened Scrutiny in Discrimination Cases

While many might consider the subject of the level of review of discriminatory laws rather dry, in real life the level of scrutiny given to discriminatory laws - especially anti-gay laws - can have a huge impact in whether or not odious legislation survives judicial review.  The Circuit Court of Appeals for the 9th Circuit has handed down a decision that could well reverberate down the road and aid in striking down anti-gay laws. The case actually involved the striking of jurors but the analysis focused on anti-gay bias that can be applied on a much more basis.  Here are highlights from BuzzFeed:

A federal appeals court Tuesday held that lawyers cannot exclude potential jurors from a jury based on their sexual orientation — a ruling whose underlying rationale could have broad implications outside of the case.

The 9th Circuit Court of Appeals, in a unanimous decision, held that discrimination based on sexual orientation is subject to heightened scrutiny — a decision the court concluded has been made in action, though not in word, by the Supreme Court itself.

In describing the reason for applying the new standard, Judge Stephen Reinhardt examined the Supreme Court’s June decision in Edith Windsor’s case challenging the Defense of Marriage Act. Although equal protection claims brought based on sexual orientation have previously been judged under the lowest level of review, called rational basis, the 9th Circuit held that a higher standard now applies. 

Writing for the three-judge panel, Reinhardt wrote:

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.

Under that heightened scrutiny, in which equal protection claims are considered more carefully by courts reviewing challenged actions, the court concluded that Batson — a Supreme Court case barring juror strikes based on race — also applies to strikes based on sexual orientation.

Reinhardt wrote:

This appeal’s central question is whether equal protection prohibits discrimination based on sexual orientation in jury selection. We must first decide whether classifications based on sexual orientation are subject to a standard higher than rational basis review. We hold that such classifications are subject to heightened scrutiny. We also hold that equal protection prohibits peremptory strikes based on sexual orientation and remand for a new trial.

Examining the history of discrimination faced by gays and lesbians, Reinhardt then applied that to the questions raised about the potential juror’s exclusion, writing:

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.

 While not announced in the context of a Christofascist backed law, the Court's ruling in the long run is a major defeat to anti-gay bigots.  Kudos to the 9th Circuit!