Federal Appeals Court Ruling Could Change The Game On Gay Rights

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Federal Appeals Court Ruling Could Change The Game On Gay Rights

When the U.S. Supreme Court made history in June by striking down the Defense of Marriage Act, the substantive holding was immediately clear: the discriminatory federal law “demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify.” What was not exactly clear was what, if any, sort of legal standards the justices set for future courts. A federal appeals court ruling issued Tuesday finds the justices set a new, heightened standard for justifying discrimination on the basis of sexual orientation.

In a ruling holding that lawyers cannot discriminate against gay people when selecting juries, a unanimous panel for the U.S. Court of Appeals for the Ninth Circuit held that courts must apply what is known as “heightened scrutiny” when assessing laws or policies that discriminate on the basis of sexual orientation. Though the Ninth Circuit does not state precisely how much skepticism it will apply to laws that discriminate against gay litigants in the future, the phrase “heightened scrutiny” is a powerful one — often, laws subject to this scrutiny are treated as preemptively unconstitutional. Indeed, the Ninth Circuit’s opinion could potentially put sexual orientation discrimination claims on similar footing with race or gender discrimination claims, and require the government to meet a very high burden to justify a discriminatory law.

Over the years, the U.S. Supreme Court has deemed certain classifications as “suspect” or “quasi-suspect” under the U.S. Constitution’s Fourteenth Amendment. The words “heightened scrutiny” are frequently used to describe the high level of skepticism applied to laws that rely on such classifications. Laws that discriminate by race are subject to the most rigorous, “strict scrutiny,” while laws that discriminate by gender are subject to “intermediate scrutiny.” Because it wasn’t clear whether the U.S. Supreme Court applied heightened scrutiny in United States v. Windsor, the federal appeals courts who have since struck down their same-sex marriage laws citing that decision have continued to use the lowest standard of review, rational basis.

But writing for a unanimous court Tuesday, Judge Stephen Reinhardt said Windsor implicitly applied heightened scrutiny to sexual orientation, even if the opinion didn’t say so: ...

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Full article here: http://thinkprogress.org/justice/2014/01/22/3188501/federal-appeals-court-ruling-change-game-lgbt-rights/

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1. Additional article below...

How A Ruling On Gay Jurors Could Have A Huge Effect On The Gay Rights Movement

In the next few weeks, AbbVie, a pharmaceutical company that produces an important AIDS drug, will make a decision that could have a far-reaching effect on gays, lesbians, bisexuals and transgender people, and not just those with HIV.

If the company appeals a recent court ruling and wins, it will come as a blow to those who hope to see states around the country topple the remaining barriers both to same-sex marriage and to laws that protect gay people from discrimination.

The case did not initially concern gay rights at all, but was instead a fight between two pharmaceutical giants. In 2007, a drug company called SmithKline Beecham Corp. sued a rival drug producer, Abbott Laboratories. Abbott, which later spun off its drug research activities into a new company, AbbVie, had quintupled the price of its popular AIDS drug, a move that ended up hurting SmithKline's bottom line.

Predictably, Abbott's decision to raise the price of its drug sparked anger and protest from AIDS activists. Still, the case may have never come to the attention of the broader gay rights community if not for an attempt by Abbott to tilt the jury's makeup in its favor: In 2011, a lawyer for Abbott dismissed a potential juror who had revealed he was gay and had friends with HIV. SmithKline argued that the removal was discriminatory, and last week the U.S. 9th Circuit Court of Appeals agreed.

In the unanimous ruling, a three-judge panel called the exclusion of gay jurors unconstitutional. The reach of this ruling goes beyond gay jurors, however, because it touches on one of the most significant legal questions concerning gay rights today: Should laws related to sexual orientation be subject to "heightened scrutiny"?

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Full article here: http://www.huffingtonpost.com/2014/02/01/gay-juror_n_4705259.html