Ninth Circuit Rules Gays Cannot Be Excluded as Jurors

, The Recorder

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SAN FRANCISCO - The U.S. Court of Appeals for the Ninth Circuit ruled Tuesday that gay men and women can't be removed from juries on the basis of their orientation.

To reach that outcome, the Ninth Circuit became the first federal appellate court to rule explicitly that laws denying equal protection to gays and lesbians are subject to heightened judicial scrutiny—a decision that could have enormous ramifications in civil rights litigation all over the western United States.

No other legal conclusion can be drawn from United States v. Windsor, the 2013 Supreme Court decision that struck down the Defense of Marriage Act, Judge Stephen Reinhardt wrote for a unanimous panel.

"Windsor review is not rational basis review," Reinhardt wrote in SmithKline Beecham v. Abbott Laboratories. "In its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review."

And just as Windsor denounced DOMA for demeaning homosexuals, Reinhardt concluded the use of peremptory challenges for discriminatory purposes continue a "deplorable tradition of treating gays and lesbians as undeserving of participation in our nation's most cherished rites and rituals."

"They tell the individual who has been struck, the litigants, other members of the venire, and the public that our judicial system treats gays and lesbians differently," he wrote.

It was an undeniably favorable outcome for Irell & Manella and Arnold & Porter. The firms not only broke novel legal ground but won a new trial for SmithKline on claims that Abbott inflated its price on an HIV medication to drive a competitor out of the market.

"We're obviously very satisfied," said Irell partner Alex Wiles. "They accepted our arguments and reached this important new conclusion of law. And they gave our clients a new trial, which it wanted and certainly felt it deserved."

Jon Davidson of amicus curiae Lambda Legal pointed out that the holding will apply not only to federal courts in the Ninth Circuit, but thousands of state courtrooms as well. Although California has a law protecting gay jurors, few other states do. "So this is a big deal for how gay, lesbian and bisexual jurors are treated throughout the Ninth Circuit," he said.

Beyond jurors, the heightened scrutiny holding will help protect public school teachers and students, police officers and the citizens with whom they interact, and many others when the government treats them differently on the basis of orientation.

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