Ninth Circuit Articulates Heightened Scrutiny Standard for Sexual Orientation

LGBT legal circles have been buzzing for months about a case before the 9th U.S. Circuit Court of Appeals which they have been calling the "gay Batson" case. Batson v. Kentucky was the case where the Supreme Court ruled that race could not be used as the reason to exclude a juror from being stricken from a jury by a so-called peremptory challenge.

The case in question is GlaxoSmithKline v. Abbot Laboratories and involves whether a gay juror can be the subject of a peremptory challenge based on their sexual orientation. The key point here is that in deciding this question, the 9th Circuit has also answered the question of what standard of review courts need to take when analyzing whether governmental actions based on sexual orientation are constitutional and has apparently decided that heightened scrutiny is required.

The Los Angeles Times reports:

The decision will also make it harder to justify laws that treat gays differently from others, including bans on same-sex marriage, lawyers said. A challenge to Nevada's marriage law is already pending in the 9th Circuit, and gays are fighting marriage bans in trial courts in Oregon, Idaho and Arizona. 

When a law discriminates on the basis of sexual orientation, it must be closely evaluated to "ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status," Judge Stephen Reinhardt wrote for the court. The panel said excluding gay jurors violated their constitutional right to equal protection under the law. 

Gay rights activists applauded the ruling and predicted that it would help them win marriage rights in other Western states besides California, where same-sex marriage was reinstated last summer. 

"This is really a very big deal," said Jon W. Davidson, legal director of Lambda Legal, a gay rights advocacy group. "It is likely to have a significant impact on other cases." 

David Codell, constitutional litigation director for the National Center for Lesbian Rights, said the decision would make it "exceedingly difficult" for states to justify discriminating against gays in all sorts of contexts.

The 2nd Appellate Circuit has also ruled, in the Windsor case that the Supreme Court affirmed (and pointedly did not vacate the lower decision), that sexual orientation requires something greater than "rational basis review" in deciding whether governmental actions that discriminate against LGB people.

The question is whether the Supreme Court would review this case from the 9th Circuit, and whether they would allow this analysis of the enhanced constitutional status of gays and lesbians to become the law of the land nationwide. Doing so, would almost certainly eventually lead to the demise of all anti-gay marriage bans around the country as well as other less onerous forms of institutionalized anti-gay public policy enacted into law.

Hat/tip to Joe.My.God