The Single Most Important Word In the Marriage Equality Opinion

Justice Anthony Kennedy who authored yesterday's historic ruling

Tucked into yesterday's historic marriage ruling is a single word that may in time auger the ultimate total legal defeat of the Christofascists' war on LGBT Americans.  The word?   Immutable.  Why is this so single word so important?  Because it is the basis for non-discrimination protections based on other immutable characteristics such as race, gender, age, and national origin (unfortunately, religion is included in such statutory protections even though religion is totally voluntary and a choice).  If sexual orientation or gender identity is immutable, it sets the stage for the expansion of non-discrimination laws and the Christofascist claims that sexual orientation is a "choice" or strictly voluntary "conduct."   Think Progress looks at how this single word may have huge impact in the years to come.  Here are excerpts:

[W]hile Friday’s decision is not a perfect victory for gay rights, it is still a massive one. And it likely clears the path for a follow up decision establishing that the rights of gay men, lesbians and bisexuals extend far beyond the marital context.

The single most important word in Justice Anthony Kennedy’s opinion for the Court is “immutable.” He uses this word twice, once in an off-hand statement that sexual orientation is an “immutable nature,” and again in a more pointed statement that “psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”

Kennedy’s declaration that sexual orientation is immutable has obvious political significance. It puts to bed, at least for legal purposes, what remains of the debate over whether people can choose not to be gay. But this word also carries particular significance in a case such as this one, where a discrete group of Americans allege that they are victims of discrimination. Though the Court’s cases have, at times, been murky on this point, they often refer to immutably as one of several factors that, when combined, can trigger heightened scrutiny. Kennedy’s decision to use this loaded word is a sign that he — and a majority of the Supreme Court — is willing to hold that all anti-gay discrimination by government should be treated skeptically.

Obergefell drops other hints that such a holding is coming. The primary factor in determining whether discrimination against a particular group should be subject to heightened scrutiny is whether that group has historically faced discrimination that bears “no relation to ability to perform or contribute to society.” Kennedy leaves little doubt that gay people meet this standard.

A close runner-up in the competition for the single most important word in Kennedy’s opinion is “fundamental.” Obergefell holds that marriage is a fundamental right, and that this right extends to same sex couples.

This holding is significant for two reasons. For one, it normalizes the Supreme Court’s gay rights jurisprudence. . . . . When a right is recognized as fundamental, any law that abridges it must be treated as preemptively unconstitutional.

Another noteworthy aspect of the ruling is recognized:

Justice Anthony Kennedy is a conservative Republican. The irony of Obergefell v. Hodges is that it is also a socially conservative opinion. The men and women behind this lawsuit, Kennedy writes, seek admission into one of the most profound and most conservative institutions in our society. According to Kennedy’s opinion, “marriage is a keystone of our social order.” It is “the foundation of the family and of society, without which there would be neither civilization nor progress.” It gives “character to our whole civil polity.” And it “remains a building block of our national community.”

And when Kennedy looks at men and women such as DeKoe, Kostura, Obergefell, Arthur, DeBoer and Rowse, and he does not see people trying to disrupt the social order. He sees people who served their country, who take in children that others cast aside. He sees the life he has enjoyed with his own wife, and he understands how soul-crushing it would be if the state treated his wife as if she were a stranger to him.

Yesterday was a huge victory for LGBT Americans.  It may prove to be an even bigger defeat for the Christofascists and the hate dispensing "family values" groups who as a further aside may have just lost one of their biggest fundraising schemes. 

Why Michigan's Marriage Ruling is So Devastating for the Christofascists

As noted in a previous post, the federal court ruling that struck down Michigan's ban on same sex marriage made strong statements on the lack of credibility of the state's "expert witness" and specifically cited the reasons why the Christofascist funded studies they relied upon were flawed and unconvincing.  All toll, the ruling was devastating to the standard rationale put forth by the enemies of Marriage equality - the case largely laid bare the fact that religious based discrimination is the sole motivation for such anti-gay laws - particularly because the ruling followed a trial with witnesses and sworn testimony.  Most of the rulings that have invalidated same sex marriage bans - e.g., Bostic v. Rainey - were decided on motions for summary judgment and relied solely on pleadings, briefs and oral arguments.  Why is this distinction important?  Because it changes the nature of the review on appeal.

In a case decided on summary judgment, the decision is based on a finding that no question of fact exists and that, therefore, all that is required is for the Court to apply the applicable law to the undisputed facts.  On appeal, reversal can be based on a simple finding that some question of fact existed and that, therefore, the lower court should not have ruled on summary judgment. The result is that the case is then remanded back to the lower court for trial unless the appellate court decides to review the questions of fact itself.  In contrast, a ruling entered after a trial is more difficult to reverse for the simple reason that the lower court heard the testimony of witnesses and its decision on the facts will not be challenged by the appellate court unless clearly wrong.  Why?  Because the lower court heard the witnesses in person, was able to observe their demeanor and body language.  Appellate courts are typically reluctant to second guess a lower court's findings of fact for this reason.  

In his ruling in striking down Michigan's ban, Judge Friedman took pains to indicate why the testimony of the state's witness was not believable and also took pains to find why the Christofascists funded "studies" were flawed and not probative of the state's argument.   This will make the State of Michigan's burden higher on appeal.  Which is a good thing.  A piece at Towleroad looks ate more aspects of the Michigan ruling.  Here are excerpts:

Judge Friedman's decision was based solely on the Equal Protection Clause and decided on rational basis review. Regular readers of the Towleroad law column will know that the means immediately.

First, "rationale basis review" is the lowest form of the judiclal scrutiny; it is the lowest hurdle for laws to pass. We have seen several opinions, including a recent appellate court opinion from the Ninth Circuit, argue that discrimination on the basis of sexual orientation merits a tougher standard, what we call "heightened scrutiny," but Judge Friedman was treading a well-worn path here. He argued that Michigan's ban on same-sex marriage was so irrational, so untethered to any legitimate state goal that he did not have to bother with the scrutiny debate: the ban fails even under the lowest standard.

Second, the Michigan decision rested solely on equal protection even though several other cases -- from California to Utah, for example -- argued that marriage discrimination violates the Equal Protection Clause and the Due Process Clause. Judge Friedman thought the latter line of reasoning -- that marriage is a fundamental right due every American and can only be taken away or restricted for a really good reason -- was unnecessary because the ban so clearly violated the guarantee of equality.

What is notable about this case is that it followed a trial. Judge Friedman heard witness testimony about gay families and couples, about child rearing, about the needs of the state, and about social science literature related to marriage and raising families. Many (but certainly not all) of Judge Friedman's colleagues have decided to strike down bans on gays marriage without trials; they relied solely on the facts and legal arguments presented in briefs and motion papers.

There are two takeaways from this situation.

First, if we recall back to the Prop 8 trial that culminated in Judge Walker's decision, the first of its kind in the nation, the benefits of a trial were clear. Forcing our antigay opponents to go on record, to swear under oath, and to sit for cross-examination stripped them of the ability to lie and mislead that a political campaign grants them. It brought sunshine to the shadowy realm of antigay bigotry. And, perhaps more importantly, it laid bare for the American public that an impartial quest for truth revealed the utter irrationality of preventing gays from marrying.

Trials on same-sex marriage, then, are beneficial.

But, they may be less frequent and less necessary going forward. Even a cursory reading of the district court cases since Windsor makes clear that the Supreme Court's decision in that case was a game-changer. It required that gay persons be treated with "equal dignity" and, even though the case itself was strictly about already legally married same-sex couples, Justice Kennedy's decision seemed broader. At least one judge found that the decision, which never explicitly mentioned scrutiny, demands heightened scrutiny anyway. And several judges have cited Windsor as arguing for a general principles of gay equality and, therefore, making all bans on gay marriage untenable.

Ninth Circuit's Application of Heightened Scrutiny for Sexual Orientation Will Stand

It what could spell the death knell for many anti-gay laws in nine western states, the ruling in SmithKline Beechum Corp. v. Abbott Laboratories will not be appealed which means that the Ninth Circuit ruling applying heightened scrutiny to laws targeting gays will be the new applicable standard.  The case has already had a big impact in the form of the State of Nevada's decision not t o defend that state's anti-gay marriage amendment.   Hopefully, there will now be a domino effect throughout the rest of the Ninth Circuit states shown in the map above.   Indeed, any attorney general in those states who now argues against such amendments based on the rejected arguments used in Virginia and elsewhere at the District Court level would be technically guilty of an ethical violation.  This is a huge development.  Imagine same sex marriage coming to Idaho, Montana, Arizona and Alaska sooner rather than later. Here are some highlights from and HRC release:

In January, the U.S. Court of Appeals for the Ninth Circuit ruled in a pharmaceutical contract dispute, *Abbott Laboratories v. SmithKline Beecham,* that it violates the U.S. Constitution's guarantee of equal protection to exclude someone from jury service because of his or her sexual orientation. In doing so, the court also concluded that discrimination based on sexual orientation should be subject to heightened scrutiny, a higher standard of judicial review that requires a stronger justification for laws and policies that treat gays and lesbians differently. Only days after the Ninth Circuit's decision, the Attorney General of Nevada ended the state's defense of its marriage ban in another case before that court, concluding that Nevada's justifications for excluding same-sex couples from marriage could not withstand that higher level of review.

"AbbVie's decision not to appeal this ruling may turn out to be a pivotal moment in the quest for marriage equality in every state in this country and greater constitutional protections for all LGBT Americans," said HRC President Chad Griffin. "We thank the company for standing on the right side of history." 

BuzzFeed has an article that looks at some of the implications.  Here are excerpts:

The major victory for LGBT advocates announced by the Human Rights Campaign actually played out in a dispute between two pharmaceutical companies, SmithKline Beecham and Abbott Laboratories, and involved whether gay people could be kept off a jury in a trial involving HIV drugs.

The 9th Circuit Court of Appeals — whose decisions apply to all federal courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington — said no. In doing so, however, Judge Stephen Reinhardt wrote a decision that could have wide-ranging and long-lasting effects on LGBT rights more broadly — from marriage to employment and beyond.

While most laws that create groups or classifications must merely show there is a rational basis, or a legitimate reason, for the law, laws subjected to heightened scrutiny — under the Equal Protection Clause of the 14th Amendment to the U.S. Constitution (and applied to the federal government through the 5th Amendment) — must show more. Some, like those that classify based on race, must show a compelling state interest for classifying people, while others, like those based on sex, must show an important state interest in doing so.

Even before the question of whether Abbott would seek further review of the January decision was resolved, the decision started to have ripple effects. On Feb. 10, Nevada Attorney General Catherine Cortez Masto announced that she and her client, Gov. Brian Sandoval, would no longer be defending Nevada’s amendment banning same-sex couples from marrying on appeal in the 9th Circuit — in large part based on the fact that they did not believe their appeal would succeed if the amendment had to withstand heightened scrutiny.

Here in Virginia, the ruling in SmithKline played a role in Attorney General Mark Herring's decision not to defend Virginia's anti-gay Marshall-Newman Amendment.  With Bostic v. Rainey on appeal to the 4th Circuit, hopefully that Court of Appeal will be influenced by the 9th Circuit's ruling.

 

Oregon AG Joins 5 States in Refusing to Defend Gay-Marriage Ban

As noted in my February column in VEER Magazine, an attorney's highest ethical duty is to the Court, not his or her client.  An attorney is ethically bound to (i) not proffer untrue facts or (ii) not misrepresent binding case law authority.  Here in Virginia, Attorney General Mark Herring recognized this ethical duty (much to the hysterical distress of Christofascists and the Republican political prostitutes) and refused to defend Virginia's foul Marshall-Newman Amendment and refused to lie to the Court about the stat of the case law on anti-gay measures.  Today, yet another state attorney general, this time Ellen Rosenblum in Oregon (pictured above), refused to defend that state's gay marriage ban stating that Oregon's ban could not be meet the level of scrutiny required.  Bloomberg.com has details.  Here are excerpts:

Oregon’s attorney general said she won’t defend her state’s ban on same-sex marriage, joining other top law enforcement officials in refusing to fight challenges to similar prohibitions in five other states. 

The law “cannot withstand a federal constitutional challenge under any standard of review,” Attorney General Ellen Rosenblum said in a court filing today in Eugene. She said the state will continue to enforce the ban unless it’s overturned by a court.

Rosenblum followed fellow Democratic attorneys general Kamala Harris of California, Mark Herring of Virginia, Lisa Madigan of Illinois, Kathleen Kane of Pennsylvania and Catherine Cortez Masto of Nevada in refusing to defend lawsuits challenging gay-marriage bans.

Litigation over the issue has spiked since a June U.S. Supreme Court decision invalidating part of a law that limited federal recognition to heterosexual marriages. Since then, four courts have overturned state bans on same-sex unions. Three of those decisions are on hold pending appeal.

Rosenblum announced her refusal to defend the Oregon ban in an answer to federal lawsuits brought last year against her and Democratic Governor John Kitzhaber.

“State defendants admit that performing same-sex marriages in Oregon would have no adverse effect on existing marriages, and that sexual orientation does not determine an individual’s capacity to establish a loving and enduring relationship,” she wrote in the filing. 

“The Attorney General has taken a close look at the facts, and came to the same conclusion that courts around the country and freedom-minded Oregonians have: there is no reasonable or legal justification to exclude committed gay and lesbian couples from marriage,” Mike Marshall, campaign manager for Oregon Untied for Marriage, said today in a statement. 

Rosenblum said in her own statement that while her office usually defends the state in litigation, “there is no rational basis for Oregon to refuse to honor the commitments made by same-sex couples in the same way it honors the commitments of opposite-sex couples.” 

Katharine Von Ter Stegge, who represents the Multnomah County assessor, a defendant in the lawsuits, had no immediate comment on the attorney general’s court filing.

The cases are Geiger v. Kitzhaber, 13-01834, and Rummell v. Kitzhaber, 13-02256, U.S. District Court, District of Oregon (Eugene).

No doubt Rosenblum will be pilloried by the Christofasicts who prefer lies, untruths and unethical conduct over a perceived betrayal of their hate and fear based religious beliefs.
 

Federal Court Stikes Down Kentucky Gay Marriage Ban, 9th Circuit Expedites Nevada Appeal

Things have been very busy on the same sex marriage front today.  First, a federal court struck down at least in part Kentucky' gay marriage ban.  Second, the 9th Circuit Court of Appeals approved the state of Nevada's withdrawal of its defense of that state's same sex marriage ban in the wake of  the 9th Circuit ruling in SmithKline Beechum Corp. v. Abbott Laboratories, and set the case up for an expedited ruling.  What is interesting is that the Nevada case will now be defended solely by a non-governmental, Christian Right organization akin to the one that appealed the ruling in Hollingsworth v. Perry. concerning Proposition 8.  Thus, if the 9th Circuit rules that Nevada's same sex marriage ban, there may be no party with standing to appeal that ruling.  In respect to the Kentucky Ruling, here are highlights from (Note: the judge who made the ruling is a Republican nominee - the court's opinion is here) MetroWeekly:

A federal judge Wednesday struck down Kentucky’s ban on recognizing same-sex marriages performed in other jurisdictions in a ruling that labeled the ban as unconstitutional. 

“[T]he Court concludes that Kentucky’s denial of recognition for valid same-sex marriages violates the United States Constitution’s guarantee of equal protection under the law, even under the most deferential standard of review. Accordingly, Kentucky’s statutes and constitutional amendment that mandate this denial are unconstitutional,” U.S. District Court Judge John G. Heyburn II wrote in a 23-page ruling.

Citing a number of gay rights cases that have come before the Supreme Court, including June’s decision in Windsor striking down Section 3 of the Defense of Marriage Act (DOMA), Heyburn wrote the nation’s highest court has established “the framework of cases from which district judges now draw wisdom and inspiration.”

Although the District Court’s decision does not strike down Kentucky’s same-sex marriage ban, it concurs with nine other state and federal court decisions striking down bans on recognition of legally married same-sex couples. Kentucky voters approved a constitutional amendment in 2004 defining marriage as between a man and a woman and prohibiting recognition of same-sex marriages performed in other states.

“What this opinion does, however, is make real the promise of equal protection under the law. It will profoundly affect validly married same-sex couples’ experience of living in the Commonwealth and elevate their marriage to an equal status in the eyes of state law,” Heyburn wrote.

Heyburn was recommended to the federal bench by Republican Sen. Mitch McConnell and nominated by President George H. W. Bush in 1992.

With respect to today's developments in the Nevada marriage case, Here are details via Lambda Legal:
 The U.S. Court of Appeals for the Ninth Circuit today granted Lambda Legal's request to expedite the hearing of Sevcik v. Sandoval, its lawsuit challenging Nevada's discriminatory marriage ban. The decision comes just two days after Nevada Gov. Brian Sandoval sought leave to withdraw his brief defending the ban. The Ninth Circuit also granted Gov. Sandoval's request to withdraw his brief. Lambda Legal Senior Attorney Tara Borelli issued the following statement:

"The fact that the government defendants no longer are defending Nevada's exclusion of same-sex couples from marriage makes any delay in these loving and committed couples securing the relief they seek particularly intolerable. The wheels of justice are now on a much faster track."

Gov. Sandoval's request and the earlier decision by Carson City Clerk-Recorder Alan Glover to withdraw his brief were motivated by the Ninth Circuit's recent ruling in SmithKline Beecham v. Abbott Laboratories that discriminatory classifications based upon sexual orientation must receive heightened scrutiny and should be presumed unconstitutional. The heightened scrutiny standard is much tougher to meet and rendered the state of Nevada's arguments in its original brief defending the marriage ban "no longer tenable in the Ninth Circuit," as Nevada's Attorney General conceded in a statement released last week. The withdrawal of the two government defendants leaves only the Coalition for the Protection of Marriage, which the U.S. District Court had allowed to intervene, defending the marriage ban.

In Sevcik v. Sandoval, Lambda Legal, joined by pro bono co-counsel from O'Melveny & Myers LLP and Snell & Wilmer LLP, represents eight same-sex couples challenging Nevada's law banning marriage for same-sex couples. The lawsuit argues that barring same-sex couples from marriage violates the Due Process and Equal Protection Clauses of the U.S. Constitution. A U.S.
District Court judge granted Nevada Gov. Brian Sandoval's motion to dismiss the lawsuit in November 2012, and Lambda Legal appealed the decision to the Ninth Circuit. The State submitted its brief supporting the marriage ban to the Ninth Circuit on the same day as the Court's ruling in SmithKline.

Overall, it appears to have been a good day for marriage equality supporters and a bad day for the Christofacist crowd.

9th Circuit Ruling On Gay Jurors Continues to Have Huge Reverbrations

As previously noted, on January 21, 2014, the Ninth Circuit Court of Appeals recently handed down a ruling in SmithKline Beecham Corp. v. Abbott Labs, a case that was not a gay rights or same sex marriage case that may have a huge impact on LGBT individuals across the nation.  Especially, if the case is appealed to the U.S. Supreme Court and is reversed or affirmed.  Either way, the impact will be huge.  The case which arose in the context of two huge pharmaceutical companies suing each other involved the striking of a gay juror by one of the litigants just as blacks would have been stricken in the South in the past (and probably even today in some jurisdictions).  In its ruling the 9th Circuit held that heightened scrutiny applied to such a discriminatory striking of a gay juror.  The effect of the holding is that in gay rights cases, the burden of proof is shifted to the state to justify discriminatory laws.  Indeed, the SmithKline case was cited by Attorney General Mark Herring in his memorandum that reversed his office's defense of the Marshall-Newman Amendment.  A piece in Huffington Post looks at just how significant these decision may be in the fight to make same sex marriage legal nation wide.  Here are some highlights:

In the next few weeks, AbbVie, a pharmaceutical company that produces an important AIDS drug, will make a decision that could have a far-reaching effect on gays, lesbians, bisexuals and transgender people, and not just those with HIV.

If the company appeals a recent court ruling and wins, it will come as a blow to those who hope to see states around the country topple the remaining barriers both to same-sex marriage and to laws that protect gay people from discrimination.

The case did not initially concern gay rights at all, but was instead a fight between two pharmaceutical giants.

[T]he case may have never come to the attention of the broader gay rights community if not for an attempt by Abbott to tilt the jury's makeup in its favor: In 2011, a lawyer for Abbott dismissed a potential juror who had revealed he was gay and had friends with HIV. SmithKline argued that the removal was discriminatory, and last week the U.S. 9th Circuit Court of Appeals agreed. 

In the unanimous ruling, a three-judge panel called the exclusion of gay jurors unconstitutional. The reach of this ruling goes beyond gay jurors, however, because it touches on one of the most significant legal questions concerning gay rights today: Should laws related to sexual orientation be subject to "heightened scrutiny"?

Over the last several decades, the Supreme Court has developed a three-tiered system for classifying alleged violations of the Equal Protection Clause of the 14th Amendment, which says that states can't deny people equal protection of the laws. When the Court classifies a case as deserving of "heightened scrutiny," it falls to the state to prove that its laws serve an important state interest. Until recently, the court has reserved this level of scrutiny for cases involving race and gender. But that’s changing.

In Nevada, the 9th Circuit Court of Appeals is currently reviewing a lawsuit that aims to strike down the state's same-sex marriage ban. And it's not looking good for opponents of same-sex marriage, thanks to the court's recent decision in the Abbott case. As Nevada Attorney General Catherine Cortez Masto acknowledged in a statement last week, the state's earlier arguments for banning same-sex marriage may not hold up in a court that applies heightened scrutiny and requires the state to justify its laws.

The state has not yet indicated whether it plans to pull out of the case entirely and refuse to defend the law, as the Obama administration did last year when the Supreme Court was considering the constitutionality of the Defense of Marriage Act. But this week, Alan Glover, an official in Carson City who was named in the lawsuit for denying the plaintiffs a marriage license, appears to have done just that.   "We don't feel that we have a legal argument to meet the heightened scrutiny," Neil Rombardo, the District Attorney for Carson City, told The Huffington Post.

Similar marriage lawsuits are underway in Oregon, Idaho and Arizona, all of which fall under the 9th Circuit's domain, and gay rights advocates are closely watching these cases too.

AbbVie has until the beginning of March to announce whether or not it will appeal the ruling in its case.   If it does, it would be asking the 9th Court not only to rule that it is acceptable to exclude gay citizens from jury service, but also to make it more difficult to challenge anti-gay laws. 

AIDS activists have long protested AbbVie for raising the prices of its immunodeficiency drugs, but if the company seeks an appeal there may be a stronger and more widespread blowback from the LGBT community. 

Brian Moulton, the head of the legal team of the gay rights group Human Rights Campaign, said he was keeping a close eye on AbbVie’s actions. Each year, HRC puts together a widely read index that ranks companies on LGBT issues. "One of the criteria in that rating system is whether or not a company takes a position in litigation that's adverse to the LGBT community," Moulton said.
If AbbVie does appeal, and succeeds, Moulton says, "it would be tremendously problematic."
 

Gay-Rights and the Court: Have We Entered Uncharted Territory?

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.

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!