A parade goer waves a flag during 43rd annual San Francisco LGBT Pride Celebration & Parade, June 30, 2013, in San Francisco, Calif.
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Gay-rights movement in uncharted territory

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No one ever accused Stephen Reinhardt of being timid.

The 82-year-old Ninth Circuit judge – often called the most liberal judge on the nation’s most liberal federal appeals court – has made a career of pushing the envelope. He has ruled, for example, that assisted suicide is a constitutional right and that the Second Amendment doesn’t give individuals the right to own guns. And his rulings in those cases, and many others, have been reversed by the Supreme Court. Indeed, a news article called him “one of the most overturned judges in history” – and that was in 1997, 17 years and dozens of reversals ago.

Now 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. Take, for example, Obamacare, which subsidizes health insurance only for lower-income people. If a wealthier person challenged that distinction in court, he or she almost certainly would lose. The court would apply what’s called “rational-basis scrutiny”: It would ask only whether there is any rational reason for Congress to draw the line it did. Laws reviewed using rational-basis scrutiny nearly always survive.

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: It refused in United States v. Windsor, last year’s landmark decision on the Defense of Marriage Act, to say what level of scrutiny applied.

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.

But is Reinhardt right? That’s where gay-rights supporters should be worried. Justice Kennedy, the Supreme Court’s swing vote, has been willing to strike down laws like DOMA. But he hasn’t been willing to say heightened scrutiny applies. And there’s no guarantee how he would rule if pressed.

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. 

Dominic Perella is a partner in the law firm of Hogan Lovells, where he specializes in Supreme Court and appellate litigation.”

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Gay-rights movement in uncharted territory

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