On Tuesday, the 9th Circuit ruled in no uncertain terms that gay people cannot be bumped from a jury due exclusively to their sexual orientation. The case arose after a prospective juror was dismissed from GlaxoSmithKline’s suit against Abbott Laboratories for allegedly overpricing its HIV drugs. According to Glaxo, Abbott’s attorneys struck an openly gay man from the jury for fear that his orientation would bias his opinion. Now the 9th Circuit has ruled the action unconstitutional, and Abbott will face a retrial.
Mark Joseph Stern is a Slate contributor. He writes about science, the law, and LGBTQ issues.
In one sense, the court’s ruling was inevitable. In 1986, the Supreme Court found that attorneys couldn’t dismiss jurors based exclusively on race, holding that both defendants and jurors themselves have a right to a racism-free voir dire. Ten years later, the court extended that principle to female jurors, adding a new justification to the mix: Justice Harry Blackmun proclaimed that gender stereotypes are “rooted in and reflective of historical prejudice” and thus serve no valid purpose in jury selection. Anti-gay stereotypes are, of course, rooted in similar “historical prejudice”—a “deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals,” in the words of the 9th Circuit. The court, then, had no choice but to shield the jury box from these irrational prejudices.
Yet in another sense, Tuesday’s decision is a critical and novel development in the legal battle for gay rights. The Supreme Court protected blacks and women from prejudiced peremptory challenges because they’re both constitutionally protected classes; in other words, any law that discriminates against them is subject to heightened judicial scrutiny. But the court has never actually declared gays a protected class. Instead, Justice Anthony Kennedy’s pro-gay opinions revel in opacity, making broad gestures toward the dignity of gay people without actually explaining what constitutional protections are afforded to them.
This tactic—scorned by Justice Antonin Scalia as “nonspecific handwaving”—has frustrated lower courts for years, with the court’s vague U.S. v. Windsor opinion only exacerbating the problem. But with this decision, the 9th Circuit became the second court to call the Supremes’ bluff, explicitly extending heightened scrutiny to gays while subtly scolding the justices for keeping mum on the biggest constitutional question of our era. Writing for the court, Judge Stephen Reinhardt flatly declares:
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. …In short, Windsor requires heightened scrutiny.Under such heightened scrutiny, the conclusion of the case itself is foregone. If blacks and women cannot be excluded from jury duty because of their identity, neither can gay people. According to Judge Reinhardt, allowing strikes based on “preconceived notions of the identities, preferences, and biases” of gay people would only perpetuate the “history of exclusion of gays and lesbians from democratic institutions.” And in the world of Windsor, this exclusion cannot stand.
Given that the 9th Circuit’s decision directly conflicts with an earlier ruling from the 8th Circuit, there’s a decent change the Supreme Court might take it up. (The justices love a good circuit split.) And the case might present a nice baby step for the court, extending more rights to gay people without toppling the whole edifice of codified homophobia. There’s certainly no paucity of gay rights cases jostling to make it onto the court’s docket, but for a cautious court, a complex case about pharmaceuticals and jury duty might be the perfect half-measure the justices are looking for.