Discrimination based on sexual orientation just got a whole lot harder to defend, a U.S. appeals court ruled on Tuesday.
The case – Smithkline Beecham Corp dba GlaxoSmithKline vs. Abbott Laboratories – involved a pharmaceutical dispute over HIV drugs, and it dealt with whether attorneys could strike potential jurors just because they were gay or lesbian.
According to Ninth Circuit Judge Stephen R. Reinhardt, they can’t.
But while Tuesday’s opinion focused essentially on jury selection, the decision also has implications for the gay rights movement as a whole, and could affect any lawsuit involving discrimination on the basis of sexual orientation.
Judge Reinhardt called for “heightened scrutiny” in such discrimination cases – a move that shifts the burden of proof off of the plaintiffs, and potentially makes challenges to employment protection policies or state bans on same-sex marriage, for example, easier to win.
“The difference is night and day,” said James Esseks, director of the American Civil Liberties Union Lesbian Gay Bisexual Transgender & AIDS Project. Under heightened scrutiny, “any law that treats gay people differently is presumed unconstitutional; it no longer gets the benefit of the doubt.”
Typically, cases involving the equal protection rights of gays and lesbians fall under the lowest standard of judicial review, known as “rational basis.” In the second level, “intermediate scrutiny,” the defendant must show how a law or action that treats one group of people differently–usually, people of a particular sex–serves an important government interest. “Strict scrutiny” is the highest level, and requires the government to demonstrate a compelling reason for treating one group of people differently–a high bar that usually applies to discrimination cases based on race.
It’s unclear whether “heightened scrutiny” refers to the second or highest standard of judicial review, but it certainly requires the defendant to work harder in cases involving alleged discrimination against gays and lesbians.
“We were jumping with joy yesterday,” said Lambda Legal’s Jon Davidson. “We do a lot of cases on behalf of people who claim they were discriminated against based on sexual orientation, and the fact that you have heightened scrutiny makes it much easier to win those cases.”
Lambda Legal signed an amicus brief in the Smithkline Beechem suit, and its challenge to Nevada’s same-sex marriage ban will feel the impact of Tuesday’s ruling. In 2012, a conservative federal judge upheld the Silver State’s ban, but the group’s appeal is now pending before the Ninth Circuit Court, and its new precedent for “heightened scrutiny.”
Speaking for a unanimous three-judge panel Tuesday, Judge Reinhardt wrote that gays and lesbians had “been systematically excluded from the most important institutions of self-governance,” and that allowing jury strikes on the basis of sexual orientation would “continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals.”
A previous Supreme Court ruling barred attorneys from excluding potential jurors on the basis of race or gender alone, but Reinhardt’s decision marks the first federal order expanding that requirement to sexual orientation. If attorneys want to use one of their fixed “peremptory” strikes in jury selection, as they’re known, they now have to give a neutral reason for removing a gay or lesbian person from consideration.
“The most important outcome, setting aside the level of scrutiny, is the message that LGBT people are equally able to perform this civic duty; that sexual orientation has no bearing on someone’s ability to be an impartial arbiter of a case,” said Brian Moulton, legal director of Human Rights Campaign.
Judge Reinhardt is the second appeals court judge to call for heightened scrutiny in cases related to sexual orientation discrimination, and the first to do so since June, when the nation’s top court invalidated a law that prevented the federal government from recognizing same-sex nuptials. That ruling, which gutted the federal Defense of Marriage Act (DOMA), alluded to a higher level of scrutiny for gay and lesbian couples, but did not explicitly address it by name.
“This decision builds on existing precedent,” said Esseks. “It reflects an evolving understanding by the court, and by the country as a whole, that gay people aren’t different than straight people. And if they’re not different, there’s no reason to treat them differently.”
“That’s taken us decades,” he continued. “But it’s a welcome change.”