With numerous cases pending across America challenging same sex marriage bans and other discriminatory laws drafted to specifically target LGBT citizens, the legal landscape has changed dramatically from even a little more than 10 years ago when, prior to the ruling in Lawrence v. Texas, gays remained basically criminalized in 13 states. Now, 17 states allow same sex marriage, but anti-gay bigotry and anti-gay laws remain plentiful in the majority of states, including here in Virginia. The question of the moment is whether or not there may be a huge shift against anti-gay laws and state constitutional amendments about to occur. MSNBC has a piece that looks at what a ruling out of the U.S. Court of Appeals for the Ninth Circuit could portend if adopted by other courts - Virginia Attorney General Mark Herring cited the case in his brief in Bostic v. Rainey - and, hopefully, affirmed by the U.S. Supreme Court. Here are excerpts:
[Ninth Circuit judge Stephen] Reinhardt is back in the headlines. This time, gay-rights advocates had better hope he’s caught the prevailing mood at the high court. That’s because his latest decision, issued Tuesday, may trigger Supreme Court review of the single most important legal issue for the gay-rights movement: Are laws that classify people based on sexual orientation subject to “heightened scrutiny”?
That may sound like an obscure question. But the answer will have a sweeping impact on laws nationwide. And it may single-handedly determine whether dozens of state laws forbidding same-sex marriage are constitutional.
Reinhardt’s ruling came in a case, GSK v. Abbott Laboratories, that on its face has little to do with gay rights. One company (GlaxoSmithKline) sued another (Abbott) in a contract dispute. But the dispute involved an HIV drug, and during jury selection, Abbott’s lawyers dismissed a potential juror who suggested he was gay.
The jury later rejected some of GlaxoSmithKline’s damage claims. On appeal, GlaxoSmithKline’s lawyers argued that they deserve a do-over because the trial was tainted by dismissal of the gay juror.
On Tuesday, a Ninth Circuit panel led by Reinhardt agreed – but it’s the way they agreed that’s important. Reinhardt wrote that government actions that treat people differently based on sexual orientation “are subject to heightened scrutiny,” like actions singling out racial minorities or women. And he concluded that lawyers aren’t free to strike jurors just because they are gay. That differential treatment, he said, violates the Constitution’s Equal Protection Clause.
That ruling is a bombshell. Here’s why: Legislatures usually are allowed to distinguish between groups when they make laws. . . . But when it comes to a few groups – most prominently, minorities and women – the rules are different. Because those groups historically lacked political power, courts are suspicious of laws singling them out, so they apply a stricter test: so-called “heightened scrutiny.” Laws singling out women, for instance, are constitutional only if the government can prove they’re necessary to advance “important governmental objectives.” That’s a much harder test to meet. In recent decades, the Supreme Court has used it to strike down laws drawing distinctions between men and women on everything from alimony to school admissions to worker’s compensation.
And that’s why Tuesday’s ruling is a watershed. Courts have long applied rational-basis scrutiny to laws that differentiate based on sexual orientation. The Supreme Court, meanwhile, has ducked the issue: . . . . But Reinhardt has now called the high court’s bluff. In GSK, he studied Justice Kennedy’s Windsor opinion and concluded that it was applying heightened scrutiny, even though it didn’t say so. Therefore, he said, the law has changed: The Supreme Court now “requires that heightened scrutiny be applied” in sexual-orientation cases.
If he’s right, then laws that disadvantage homosexuals on a wide range of issues – inheritance, benefits, hospital-visitation rights – are in danger. So are state gay-marriage bans. A federal judge has predicted that a heightened-scrutiny test “would likely doom” every such ban.
The next big question, then, is whether the Supreme Court will take this case. That’s still up in the air and will be for months. But there are reasons to think it might: The court loves big-ticket cases. And Reinhardt’s decision creates a split among the federal appeals courts on what level of scrutiny applies. Such splits often lead to high-court review.
If GSK ends up in the Supreme Court, watch out. It has the potential to make last year’s DOMA decision look like small potatoes.
If justices are honest and can put aside the inappropriate deference too long given to religious based discrimination, the Supreme Court should affirm the 9th Circuit ruling. And if it does, the Christofascists will have been dealt a huge defeat in their effort to stigmatize LGBT people and make us inferior under the law. Keep your fingers crossed.
No comments:
Post a Comment