Scott Forsyth, The Daily Record Newswire
Over the past 12 months, a slew of district courts and one circuit court of appeals have struck down state bans on same-sex marriage. They are relying on the reasoning of United States v. Windsor, 133 S.Ct. 2675 (2013), principally what the Supreme Court said about treating gays and lesbians different from heterosexual persons being a form of discrimination proscribed by the Equal Protection Clause.
The reliance of the lower courts on Windsor is straightforward, because the laws at issue in all of the cases, including Windsor, dealt with marriage and its benefits. Windsor reminds us the courts have historically protected the right to marry from government intervention.
Can the reasoning of Windsor be applied to situations outside the context of marriage? Yes, the courts are moving in that direction.
Take the massive breach of contract and antitrust lawsuit between SmithKline Beecham and Abbott Laboratories. The former complained the latter increased fourfold the price of HIV drugs Abbott licensed to SmithKline, in effort to drive business to Abbott’s own combination drug.
A jury found for SmithKline and awarded it $3,486,240 in damages. Both sides appealed. In January the court reversed the award and ordered a new trial, holding a constitutional error occurred during jury selection, SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014).
SmithKline contended Abbott used a peremptory challenge to exclude a juror on the basis of his sexual orientation. Counsel for SmithKline challenged the strike, pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). Surprisingly, counsel for Abbott did not provide an explanation for his strike when asked for one. The district court denied the challenge.
On appeal, the court looked at the circumstances surrounding the strike. The prospective male juror referred several times to his male partner. Counsel for Abbott only asked the juror five questions, about his knowledge of the drugs in dispute. He did not question the juror about his potential biases. The court concluded counsel struck the juror not out of a concern about his actual bias but “on a discriminatory assumption that (the juror) could not impartially evaluate the case because of his sexual orientation.”
The Supreme Court has ruled, on equal protection grounds, that race and gender are attributes which may not serve as the bases for peremptory challenges, Id. (race); J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127 (1994) (gender). This is necessary to assure historically disadvantaged groups are represented on juries. Striking members of the two groups based on stereotypes of the groups “touch(es) the entire community,” “undermin(ing) public confidence in the fairness of our system of justice.”
The Abbott court reviewed American history and determined gays and lesbians had been systemically excluded from the institutions of self-governance, nearly as much as African Americans and women. Strikes based on sexual orientation “continued this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals.”
Nevertheless, the court was prepared to uphold the exclusion of the juror in Abbott but for Windsor. Before Windsor, the court applied rational basis to review government classifications based on sexual orientation. Under rational basis, a very deferential standard, the lower court, the government here, prevails.
However, Windsor increased the level of scrutiny of classifications based on sexual orientation to intermediate or heightened. Government must identify a “legitimate” interest in the classification and that interest must counterbalance the harm caused by the classification. The lower court did not engage in this analysis. The appellate court did and found the harm to gays and lesbians in particular and society in general to far outweigh any interest of the state.
For persons concerned Abbott may have put us on a slippery slope, expanding the attributes that may not serve as bases for a peremptory challenge, the court did try to delineate a limiting principle. Only groups benefitting from heightened scrutiny in equal protection case law are protected. Women are one such group. Whether this principle will work in all situations remains to be seen.
If you do not want to argue your next peremptory challenge before an appellate court, at the very least do what Abbott’s counsel failed to do. When offered to explain the challenge, accept. Then refer to something about the juror other than an attribute that may be protected by the Equal Protection Clause.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
