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Gay juror decision bodes well for marriage cases: experts

National LGBT Bar Association, Gay News, Washington Blade

The Ninth Circuit Court of Appeals applied heightened scrutiny in ruling against discrimination against gay jurors (image via wikimedia).

A ruling handed down by a federal appeals court on Tuesday in favor of LGBT non-discrimination in jury selection bodes well for the success of marriage equality litigation, according to legal experts who spoke to the Washington Blade.

Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender & Sexuality Law, said the decision is important in and of itself, but also because of its impact on the case pending before the same court against Nevada’s ban on same-sex marriage.

“The ruling will make it even more difficult for Nevada’s marriage law to withstand the current challenge to it because heightened scrutiny means that the government will have to identify an ‘important’ state interest if it wants to continue to exclude gay and lesbian couples from marriage,” Goldberg said.

On Tuesday, a three-judge panel on the U.S. Ninth Circuit Court of Appeals determined the trial judge erred in allowing one litigant to remove a juror because of his sexual orientation, remanding the case for a new trial.

The case — Glaxo Smith Kline v. Abbott Laboratories — is the result of antitrust, contracts and business tort claims filed against the company for quadrupling the price of its protease inhibitor booster drug used by people with HIV. During jury selection, Abbott used its first peremptory challenge to strike a prospective juror after learning he was gay.

Writing for the majority, U.S. District Judge Roy Reinhardt ruled that Abbott “unconstitutionally used a peremptory strike” to exclude Juror B from the case because of his sexual orientation, but goes further by saying the court must apply heightened scrutiny in its ruling in the wake of the U.S. Supreme Court decision against the Defense of Marriage Act.

“Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status,” Reinhardt writes. “In short, Windsor requires heightened scrutiny.”

It’s not the first time that an appellate court has applied heightened scrutiny, or a greater assumption a law is unconstitutional, when considering a case related to sexual orientation. The U.S. Second Circuit Court of Appeals applied that standard when ruling in favor of Edith Windsor in her case against DOMA before that lawsuit came before the Supreme Court.

Several federal district courts have made similar rulings, as have the state high courts of California, Iowa, Connecticut and New Mexico. The view that laws related to sexual orientation should be subject to heightened scrutiny is also shared by the Obama administration.

But the decision in the Ninth Circuit is significant because it creates precedent within that jurisdiction to apply heightened scrutiny in the numerous cases before it involving gay people and may encourage courts outside the circuit to do the same.

Doug NeJaime, a law professor at the University of California, Irvine, said the court application of heightened scrutiny to its decision “is very significant.”

“This Ninth Circuit ruling will likely encourage other courts to engage with the issue of whether Windsor suggests some heightened form of scrutiny,” NeJaime said. “More concretely, it will directly influence the challenge to Nevada’s marriage law currently before the Ninth Circuit; whether sexual orientation merits heightened scrutiny for federal equal protection purposes has been an issue throughout that case, and the district court had decided that it did not.”

Still, NeJaime said the Ninth Circuit’s decision to draw on the DOMA decision to apply heightened scrutiny “will likely be proven controversial” because U.S. Associate Justice Anthony Kennedy never explicitly invoked the level of scrutiny in his ruling.

The high-profile case involving sexual orientation before the Ninth Circuit is Sevick v. Sandoval, the challenge filed by Lambda Legal against Nevada’s ban on same-sex marriage.

Jon Davidson, Lambda’s legal director, said the ruling will have “a very significant impact” on the court’s examination of the Nevada marriage case.

“The Ninth Circuit’s ruling that sexual orientation discrimination must be given heightened scrutiny is further proof of the progress we are making in convincing courts that the Constitution affords LGBT people meaningful protections against government-imposed inequality,” Davidson said.

Opponents of the case, known as the Coalition for the Protection of Marriage, filed their brief before the Ninth Circuit on the same day as the jury selection ruling, arguing in an untimely manner that “there is no legal or factual basis for deploying ‘heightened scrutiny’ in this case.”

But the Nevada marriage case isn’t the only lawsuit pending before the Ninth Circuit. Other cases in the jurisdiction are the recently filed challenge against Arizona’s ban on same-sex marriage and the case against Oregon’s ban, which is currently before  gay U.S. District Judge Michael McShane.

Additionally, the challenge against the Arizona law signed by Gov. Jan Brewer rescinding domestic partner benefits for gay state employees is also before the Ninth Circuit. The court’s use of heightened scrutiny in the juror case could influence the decision in any of these cases.

Davidson added the application of heightened scrutiny in the juror case also has implications on gay government workers seeking relief if they feel they’ve faced discrimination on the job.

“If any federal, state, or local government agency or official in any of the nine states in the Ninth Circuit discriminates against someone based on their sexual orientation, they will have the burden of demonstrating that their action substantially furthers an important and legitimate government goal,” Davidson said. “They will not be able to rely on hypothetical or after the fact justifications.”

Despite the celebration over the standard of review in the case, LGBT advocates are also celebrating the ruling in its own right for establishing non-discrimination against gay people in the juror selection process.

D’Arcy Kemnitz, executive director of the National LGBT Bar Association, commended the Ninth Circuit.

“Jury service is a fundamental civic duty,” Kemnitz said. “LGBT people are proud to serve the courts when summoned. While some might jest at jury duty, in fact the courts demand through a subpoena that a person suspends their usual daily activity to be part of the rule of law.”

Legislation known as the Jury ACCESS Act, which would institute a rule of non-discrimination for gay jurors in federal courts, is also pending before Congress. Last year, it was incorporated into the Senate version of the fiscal year 2014 financial services appropriations bill, but it’s technically no longer pending because Congress passed omnibus spending legislation instead.

Sen. Jeanne Shaheen (D-N.H.), chief sponsor of the legislation, commended the Ninth Circuit for issuing the ruling, but said more action is needed from Congress.

“There is no place for discrimination in our judicial system, and it should be the right and obligation of every citizen to sit on a jury,” Shaheen said. “The appellate court’s ruling is an important step, but I will continue working to make sure no American can be excluded from this important civil responsibility on the basis of their sexual orientation or gender identity.”


Gay couples can marry immediately in California

Proposition 8, Supreme Court, DOMA, Gay Marriage, Gay News, Washington Blade

Gay couples like the Prop 8 plaintiffs will finally be able to marry in California (Blade file photo by Michael Key).

Gay couples can begin to marry immediately in California thanks to the last procedural hurdle being overcome in the aftermath of the Supreme Court’s decision to strike down to California Proposition 8.

On Friday, the U.S. Ninth Circuit Court of Appeals lift its stay on the injunction against the enforcement of Prop 8 that was put in place by U.S. District Vaughn Walker.

Human Rights Campaign President Chad Griffin praised the development in a statement from San Francisco prior to the city’s Pride celebration.

“After four and a half long and painful years, justice for committed gay and lesbian couples has finally been delivered,” Griffin said. “In California, a time of struggle and indignity are over, and love, justice and freedom begin anew. And now, no election, no judge – no one – can take this basic right away. At long last, marriage has finally returned to the most populous state in the nation.”

Griffin said the news is welcome relief to the gay plaintiff couples in the lawsuit that he helped to initiate to put an end to Prop 8 in addition to the many thousands of same-sex couples in California.

“Kris Perry and Sandy Stier’s twin sons were just starting high school when their moms’ right to marry was taken away, now, as they prepare to start college, they will finally see their family recognized in the eyes of their state and their country,” Griffin said. “Paul Katami and Jeff Zarrillo, now free to marry, can finally plan the family they’ve always wanted. Thousands upon thousands of lives are about to change for the better, for good. And young LGBT people across the Golden State will can today look forward to a future where they are truly and fully equal.”

The American Federation for Equal Rights, which was responsible for the lawsuit, said in statement the plaintiff couples would be the first to marry in California in the aftermath of Prop 8. Perry and Stier are set to marry in San Francisco while Katami and Zarrillo are set to marry in Los Angeles. California Attorney General Kamala Harris said via Twitter she’d officiate over the ceremony in San Francisco.

Griffin concluded, “Today is a day of profound celebration, but tomorrow – and every day from here on out – we will fight until joy, dignity, and full equality in all its forms reach each and every corner of this vast country.”

UPDATE: At 4:45 pm, Harris married Perry and Stier in San Francisco City Hall, saying, “Today, we witness not only the joining of Kristen and Sandy, but the realization of their dream: marriage. They have waited, hoped and fought for this moment. Today, their wait is finally over.”


Court upholds Calif. law banning ‘conversion’ therapy

California, Gov. Jerry Brown, Gay News, Washington Blade

California Gov. Jerry Brown signed the ‘ex-gay’ therapy ban into law in September 2012. (Photo public Domain)

The Ninth Circuit U.S. Court of Appeals on Thursday upheld a 2012 California law that prohibits licensed therapists from attempting to change the sexual orientation or gender expression of a person under the age of 18 through so-called “conversion” or “reparative” therapy.

The ruling by a three-judge panel states that two separate lawsuits filed by anti-LGBT groups challenging the law could not succeed in their assertion that the law infringes on the free speech rights of therapists who seek to perform the therapy.

The appeals court also rejected claims by the groups filing the lawsuits that the law, known as SB 1172, interferes with the rights of parents to provide therapy seeking to change the sexual orientation or gender expression of their children on religious grounds.

“Fundamental rights of parents do not include the right to choose a specific type of provider for a specific medical or mental health treatment that the state has reasonably deemed harmful,” 9th Circuit Judge Susan Graber wrote in the unanimous three-judge decision.

In defending the law, California officials argued that virtually all of the organizations representing the medical and mental health professions, including the American Psychiatric Association, have called the therapy harmful and ineffective in changing someone’s sexual orientation or gender identity or expression.

All of the nation’s leading medical and mental health organizations have also warned that therapy seeking to change someone from gay to straight, especially youth, places them at risk for depression and suicide.

“The court’s decision today on Senate Bill 1172 is a major victory for anyone who cares about the well-being of our youth,” said John O’Connor, executive director of the statewide LGBT group Equality California. “It will directly impact the lives of thousands of young people by protecting them from this horrific practice.”

Brad Dacus, president of the Pacific Justice Institute, one of the groups seeking to overturn the law, said the group plans to appeal the 9th Circuit Appeals Court’s decision.

“This decision is a dark day for those who believe in the First Amendment and the right of parents over the proper upbringing of their children,” the San Jose Mercury News quoted him as saying.

California Gov. Jerry Brown, who signed the measure into law in September 2012, said it was needed to protect children and teenagers under the age of 18 from “non-scientific ‘therapies’ that have driven young people to depression and suicide.”

Brown added, “These practices have no basis in science or medicine and they will now be relegated to the dustbin of quackery.”

The decision by the 9th Circuit panel followed an earlier split decision by two U.S. District Court judges in Sacramento last December. One of the judges ruled the lawsuit challenging the law had merit and issued a stay temporarily preventing the state from enforcing the law. Another District Court judge ruled that the plaintiffs in the lawsuit most likely could not succeed in their constitutional challenge because the law didn’t violate their free speech rights.

Thursday’s ruling by the 9th Circuit Court of Appeals panel upheld the ruling of the District Court judge who asserted the case challenging the law would not likely succeed on constitutional grounds.

However, the 9th Circuit panel ordered that the two cases be sent back to their respective District Court judges for deliberation and a decision on other legal challenges filed by the plaintiffs, according to a statement released on Thursday by the National Center for Lesbian Rights.

NCLR Legal Director Shannon Minter said the overall action by the 9th Circuit judges clears the way for the eventual permanent upholding of SB 1172.

“The court of appeals ruled in very clear terms that state-licensed therapists do not have a constitutional right to engage in discredited practices that offer no health benefits and put LGBT youth at risk of severe harm, including depression and suicide,” Minter said in a statement.

On Aug. 13, New Jersey Gov. Chris Christie signed a similar bill into law. Other bills calling for banning “conversion” therapy for minors have been introduced in Massachusetts, New York and Pennsylvania.


Year in review: DOMA, Prop 8 challenges advance in the courts

Supreme Court, gay marriage, same sex marriage, marriage equality, Proposition 8, Defense of Marriage Act,

The Supreme Court (Washington Blade photo by Michael Key)

The Supreme Court set the stage this year for what might be the demise of California’s Proposition 8 and the Defense of Marriage Act when it agreed to take up litigation challenging the anti-gay measures.

On Dec. 7, justices agreed to take up Hollingsworth v. Perry, the lawsuit seeking to overturn Prop 8, and Windsor v. United States, a lawsuit filed by 83-year-old New York lesbian Edith Windsor seeking to overturn DOMA.

Ted Olson, one of the co-counsels representing plaintiffs, expressed optimism following the announcement that justices would rule against the California’s constitutional ban on same-sex marriage, which was approved by voters in 2008.

“We have an exhaustive record on which to build this case, and it will be an education for the American people,” Olson said. “We are very confident the outcome of this case will be to support the rights of our gay and lesbian brothers and sisters.”

The case comes to the Supreme Court after the U.S. Ninth Circuit Court of Appeals in February ruled against Prop 8. Had the Supreme Court declined to accept the case, the ruling would have stood and marriage equality would have been restored to California.

The DOMA case comes to the Supreme Court after numerous lower courts determined the anti-gay law was unconstitutional. The U.S. First Circuit Court of Appeals became the first appellate court ever to strike down the law and was followed by the U.S. Second Circuit Court of Appeals. This year alone, four federal district courts also ruled against DOMA.