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We hold that heightened scrutiny applies
January 21, 2014 2:30 PM   Subscribe

Today, the Ninth Circuit reversed and remanded the case of Smithkline Beecham Corporation v. Abbott Laboratories, holding that lawyers cannot exclude a potential juror from service solely based on their sexual orientation, because sexual orientation is subject to heightened scrutiny under the Equal Protection Clause.
posted by roomthreeseventeen (34 comments total) 9 users marked this as a favorite

 
O_O
posted by jph at 2:38 PM on January 21


(That's my "heightened scrutiny face.")
posted by jph at 2:38 PM on January 21 [8 favorites]


Very good news.

A nice appetizer for what I hope is the year the Supreme Court rules there is a constitutional right to gay marriage.
posted by bearwife at 2:39 PM on January 21


Good.

(I'm sorry; I have lots of STRONG OPINIONS on this matter -- overall from a heightened scrutiny perspective but also this case in specific -- and I look forward to the discussion. But "good" is basically all I can add at this point. Because it only looks good to my uneducated-but-passionately-interested eyes.)
posted by MCMikeNamara at 2:41 PM on January 21 [2 favorites]


Oh, man, how I love the 9th Circuit.
posted by suelac at 2:42 PM on January 21 [1 favorite]


This is good, but I wonder if it is as big a win as it seems. A lawyer hoping to strike a juror on the basis of sexual orientation could just say they made their decision on the basis of something like the jurors clothing or hairstyle. As I understand it, this is one way that racial bias continues to permeate this part of the judicial process.
posted by voltairemodern at 2:51 PM on January 21


This is fabulous, this is another example of Scalia's prediction in his dissent in Lawrence coming true. Love it. Also, it's the right result.

This is good, but I wonder if it is as big a win as it seems.


The real win has little do to with peremptory challenges and everything under the sun in treating sexual orientation as a category deserving of heightened scrutiny under the Equal Protection Clause. If sexual orientation gets heightened scrutiny, all kinds of dominoes start to fall. This will be pretty contentious.
posted by MoonOrb at 2:55 PM on January 21 [3 favorites]


It's significant that the court held that heightened scrutiny applies to sexual orientation. That's a big deal. The questionably ability of courts to police this is a separate issue.
posted by prefpara at 2:55 PM on January 21


For those who are curious - the case is a contract/antitrust case between two big drug companies, focusing on some HIV drugs. Which is why one of those companies tried to avoid having any gay people on the jury.
posted by Lemurrhea at 2:56 PM on January 21 [5 favorites]


Different courts have different rules, but often you can strike someone for no reason at all, but you only get a certain number of those.
posted by cjorgensen at 2:56 PM on January 21 [1 favorite]


Heightened scrutiny is the really interesting part of this.
posted by Sticherbeast at 2:58 PM on January 21


Different courts have different rules, but often you can strike someone for no reason at all, but you only get a certain number of those.

These are still subject to the Batson rule that the challenges cannot be for reasons such as race, gender, and now, sexual orientation. So it's a qualified "no reason at all."
posted by MoonOrb at 3:02 PM on January 21 [1 favorite]


holding that lawyers cannot exclude a potential juror from service solely based on their sexual orientation

Jesus, I didn't even know this type of thing existed.

Question: Am I to assume that lawyers can't exclude anyone from the jury selection process based on gender or race?
posted by littlesq at 3:04 PM on January 21


Question: Am I to assume that lawyers can't exclude anyone from the jury selection process based on gender or race?

Yes, that accurately states the law. Obviously there are attempts to circumvent the rule, but that's the rule.
posted by MoonOrb at 3:08 PM on January 21 [1 favorite]


Is this enforceable in anything but the most blatant cases?
posted by indubitable at 3:32 PM on January 21


For those who are curious - the case is a contract/antitrust case between two big drug companies, focusing on some HIV drugs. Which is why one of those companies tried to avoid having any gay people on the jury.

Yeah because of course only gay people give a shit about HIV. It's like when the pro-prop 8 guys tried to have the judge declared biased because he's gay. Like a straight person would obviously not have a bias in determining the outcome of a same-sex marriage case.

/puts out flaming head
posted by rtha at 3:48 PM on January 21


It would be so satisfying to be a straight potential juror on that trial, though, once it became clear what the attorneys were doing. Oh yes, I am totes straight 100%! Not a gay bone in my body! AHAHAHAHAHA NOW I SHALL FOIL YOUR WEAK, STEREOTYPE-BASED PLAN WITH MY SECRET LEFT WING IDEALISM!
posted by prefpara at 3:56 PM on January 21 [1 favorite]


"This is good, but I wonder if it is as big a win as it seems. A lawyer hoping to strike a juror on the basis of sexual orientation could just say they made their decision on the basis of something like the jurors clothing or hairstyle. As I understand it, this is one way that racial bias continues to permeate this part of the judicial process."

The big deal is that the Ninth read Windsor as requiring more than rational basis for discriminating against LGBT people. Windsor, as I understand it, was kinda vague on what the ultimate standard is, but since it's more than rational basis, it means that there's no longer a presumption of propriety for discrimination against LGBT people in federal law.
posted by klangklangston at 4:05 PM on January 21


Even though I have always thought that High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (9th Cir. 1990), is a great name, I am still happy to see it overruled.

If you want to get technical, this opinion actually holds that the Supreme Court overruled it in Windsor. A three-judge panel can't overrule the holding of an earlier three-judge panel.
posted by Xalf at 4:33 PM on January 21 [3 favorites]


Very, very general guide to scrutinies, with regard to government action and the 14th Amendment:

Rational basis scrutiny: the action must be rationally related to a legitimate government interest. A rational basis is not necessarily a good or smart basis. This level of scrutiny is the equivalent of putting a mirror under the law's nose, to see if it fogs up. Outside of the Ninth Circuit as of this decision, this is the level of scrutiny applied to discrimination on the basis of sexual orientation.

Intermediate scrutiny: the action must further an important government interest in a way that is substantially related to that interest. Note the difference between "be...related" vs. "further", "legitimate" vs. "important". This is the level of scrutiny applied to discrimination on the on the basis of sex/gender.

Heightened scrutiny: the action must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. Note the addition of "necessity". This is "intermediate plus", although in practice the distinction is hazy between intermediate and heightened scrutiny. This is the level of scrutiny that the Ninth Circuit has just applied to discrimination on the basis of sexual orientation.

Strict scrutiny: the action must be justified by a compelling governmental interest, must be narrowly tailored to achieve that goal or interest, and must be the least restrictive means for achieving that interest. This is the level of scrutiny applied to discrimination on the basis of race.
posted by Sticherbeast at 4:39 PM on January 21 [7 favorites]


Nice! But let's just get strict on this scrutiny.
posted by Ironmouth at 5:18 PM on January 21


For those who are curious - the case is a contract/antitrust case between two big drug companies, focusing on some HIV drugs. Which is why one of those companies tried to avoid having any gay people on the jury.

Yeah because of course only gay people give a shit about HIV. It's like when the pro-prop 8 guys tried to have the judge declared biased because he's gay. Like a straight person would obviously not have a bias in determining the outcome of a same-sex marriage case.


Just to be clear, I agree with you completely - the idea that it would be beneficial to strike a GLBT* person from this jury is pretty stupid and definitely based on outdated thinking. It is what the lawyer was thinking, though.

my first guess at why a lawyer would be using a peremptory was that the case had something to do with either hate crimes or unfair dismissal, because those are at least sensible reasons to try and avoid empathetic jurors.
posted by Lemurrhea at 5:38 PM on January 21


Oh, for sure, Lemurrhea - I totally grokked you.
posted by rtha at 6:12 PM on January 21 [1 favorite]


I'm kind of suprised that Glaxo Smith Kline Beecham Wellcome Beckman haven't just merged with Abbott Laboratories rather than fight it out.
posted by onya at 8:55 PM on January 21 [1 favorite]


Well it's nice that the fact pattern set itself up so well here, with Abbott's lawyer basically admitting that a) Batson didn't apply and b) even if it did, he didn't know for sure the juror was gay and c) it's not like he was kicking off all the gays, just that one.

I don't see how this holds up in most cases, though. Batson is generally targeted at prosecutors, and usually they can tidily circumvent the issue by making up a random BS reason they kicked a juror (it wasn't because the juror was black, it's because he looked angry when the prosecutor questioned him.)

Also, I wonder about the constitutional protections for criminal defendants if Batson actually applies to civil cases (and by extension, therefore applies to criminal defendants as well as the prosecution.) Does someone accused of a crime have the right to kick off jurors just because he doesn't like women on his jury? Interesting stuff.
posted by Happydaz at 10:29 PM on January 21


Who gets to define government interest?

This is both a rhetorical and genuine question.
posted by IndigoJones at 7:49 AM on January 22


Who gets to define government interest?

Courts.
posted by ROU_Xenophobe at 8:16 AM on January 22


Who gets to define government interest?

Courts.


And the courts' judgments are informed by many decades of previous court decisions and generally by constitutional principles. So while each court's opinion reflects the makeup of that particular court and the general political climate of that time, it's also the case that there's an established background against which these decisions are made.
posted by MoonOrb at 8:34 AM on January 22


Question for the legal minds here:

This is now a binding precedent on all cases involving same-sex-anything in the Ninth Circuit, is that correct?

And therefore this means SCOTUS is going to have to rule on this within the next year or so, because some inevitable asshat will challenge this ruling up to them, is that correct?

Following that sequence of events, there's three outcomes I can see:

1) SCOTUS refuses to hear the case. Means the precedent stands? Does that mean the precedent then starts applying to all the other circuits?

2) SCOTUS hears the case and upholds the ruling of heightened scrutiny. That then becomes the law of the land and all same-sex-anything cases everywhere must be subject to heightened scrutiny, yes?

3) SCOTUS hears the case and disagrees that heightened scrutiny applies. That then becomes the law of the land, yes?
posted by feckless fecal fear mongering at 8:55 AM on January 22


This is now a binding precedent on all cases involving same-sex-anything in the Ninth Circuit, is that correct?

It should, yes. The heightened scrutiny aspect of the decision has broader application than just to Batson challenges, and should be generalizable to any analysis of laws affecting homosexuality. After reading the opinion yesterday it looks to me like a lower court in the Ninth Circuit wouldn't be able to say that the rule applies only to Batson challenges.

And therefore this means SCOTUS is going to have to rule on this within the next year or so, because some inevitable asshat will challenge this ruling up to them, is that correct?

It's too early to tell if the drug company will apply to the S Ct for review. It might not want to, given the expense, possibility it might lose anyway, the fact that maybe the issue is even moot at this point (for instance, maybe the parties have settled? Or might settle? Which happens a lot). So while review by the Supreme Court seems likely at some point, it's hard to say at this point that it is inevitable, but that is a little hair-splitty as even if this ruling isn't appealed, it is certainly inevitable that once this precedent is applied to other cases, one of those rulings probably will be.

What is more likely is that the drug company asks the Ninth Circuit to rehear the case en banc (in front of a big panel of judges, instead of a 3 judge panel like the one that issued this decision. If the en panc panel reaches a different result, it's likely that the losing party will apply for a writ to the Supreme Court, which may or may not take the case, but I'm guessing probably would.

Following that sequence of events, there's three outcomes I can see:
1) SCOTUS refuses to hear the case. Means the precedent stands? Does that mean the precedent then starts applying to all the other circuits?
If this happens, the precedent applies only to the Ninth Circuit and its lower courts (federal district courts within the Ninth Circuit). State courts and courts of other federal circuits might find the ruling persuasive and follow it or might go a different route. (This is what happens when a federal court--not the supreme court--interprets consitutional law, right? States within that circuit aren't bound to follow it?). In any case, the precedent will not apply to other circuits except to the extent courts in those jurisdictions find it persuasive.

2) SCOTUS hears the case and upholds the ruling of heightened scrutiny. That then becomes the law of the land and all same-sex-anything cases everywhere must be subject to heightened scrutiny, yes? If the S Ct hears it and reaches this decision, yes. Absolutely.

3) SCOTUS hears the case and disagrees that heightened scrutiny applies. That then becomes the law of the land, yes? Yep, exactly. A small exception could be if state courts rule that the constitution of their particular state provides greater protection than the federal constitution. This happens sometimes in some contexts.
posted by MoonOrb at 10:22 AM on January 22 [1 favorite]


holding that lawyers cannot exclude a potential juror from service solely based on their sexual orientation

WTF, lawyers. Sometimes you are stupids.
posted by hal_c_on at 10:39 AM on January 22


In "elections and voting rights matters" news on the LGBT front:

Virginia attorney general: Our state’s marriage equality ban is unconstitutional and I won’t defend it
While former attorney general Ken Cuccinelli fought tooth and nail to defend and reinstate unconstitutional (and explicitly anti-LGBTQ) laws in Virginia, newly elected attorney general Mark Herring has announced his state’s ban on marriage equality is unconstitutional and that he will not defend it against federal lawsuits.

“After a thorough legal review of the matter, Attorney General Herring has concluded that Virginia’s current ban is in violation of the U.S. constitution and he will not defend it,” spokesman Michael Kelly announced in a statement to the Associated Press.

Herring, a Democrat who campaigned on marriage equality, will file a brief Thursday in support of the plaintiffs in the lawsuit challenging the marriage equality ban.

An attorney for one of the couples in the case told the Associated Press, “It’s a nice day to be an American.”
Herring won by a 907 vote (0.04%) margin.
posted by zombieflanders at 7:50 AM on January 23


This really is a landslide that's gathering momentum, isn't it? I'm betting SCOTUS puts the entire issue to bed one way or the other by June 2015. Really it'll depend on where Kennedy comes down, right? The likelihood of Obama nominating someone new to the court in the next 18 months is pretty low, I think?

I shudder to think how ugly the backlash is going to be, though. The neocons are standing athwart history frantically yelling "Stop!" and watching nobody listen. I think it's going to get uglier before the end.
posted by feckless fecal fear mongering at 8:43 AM on January 23


"The likelihood of Obama nominating someone new to the court in the next 18 months is pretty low, I think?"

Every day, I pray that one of Scalia, Thomas or Alito gets on the wrong end of a shotgun from Dick Cheney.
posted by klangklangston at 1:50 PM on January 23


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