"Gays and lesbians have been systematically excluded from the most important institutions of self-governance," Judge Stephen R. Reinhardt wrote for a unanimous three-judge panel. "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." The decision arose from questioning of a juror at the 2011 trial of an antitrust dispute between two giant drug companies. After a potential juror appeared to reveal that he was gay, a lawyer for Abbott Laboratories used a peremptory strike to eliminate him from the jury pool. Judge Reinhardt said the strike was a case of intentional discrimination against a gay man in a case concerning AIDS medications of intense interest to gay people.
Judge Reinhardt wrote that the Supreme Court's decision in June in United States v. Windsor, which struck down part of the federal Defense of Marriage Act, required the application of "heightened scrutiny," meaning more involved searching than a usual inquiry, when the government makes distinctions based on sexual orientation. This was so, Judge Reinhardt wrote, even though the majority opinion in the Windsor decision did not specify the level of scrutiny it had applied. "We have analyzed the Supreme Court precedent," Judge Reinhardt wrote, quoting from an earlier decision, "by considering what the court actually did, rather than by dissecting isolated pieces of text."