Ninth Circuit Rules Sexual Orientation Discrimination Requires Careful Scrutiny By Courts

(Los Angeles, January 21, 2014) – The U.S. Ninth Circuit Court of Appeals today overturned a lower court ruling because the trial judge erred in allowing one litigant to use a peremptory challenge (a challenge to a juror not based on demonstrated cause) to remove a juror because of the juror’s sexual orientation. Lambda Legal submitted a friend-of-the-court brief in the case, GlaxoSmithKline v. Abbott Laboratories. Jon Davidson, Legal Director and Eden/Rushing Chair at Lambda Legal, issued the following statement:

“This landmark ruling establishes what we have long argued – that classifications based upon sexual orientation deserve heightened judicial scrutiny. The Court here properly found that, when a juror is excused based on the juror’s sexual orientation, that harms the juror, the litigants, and the judicial system itself. As with race- and sex-based peremptory challenges, allowing prospective jurors to be precluded from serving because of their sexual orientation serves no purpose other than to perpetuate and reinforce invidious discrimination. The court ruled that such action directly contravenes the Equal Protection Clause of the U.S. Constitution, and should not be permitted.”

In its ruling, the Ninth Circuit writes: “[W]e are required by [U.S. v.] Windsor to apply heightened scrutiny to classifications based on sexual orientation for purposes of equal protection….[T]here can no longer be any question that gays and lesbians are no longer a ‘group or class of individuals normally subject to ‘rational basis’ review.’”  As a result, the court explained, “when state action discriminates on the basis of sexual orientation,” a court “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.”  This ruling is sure to impact other cases pending in the Ninth Circuit and elsewhere, including Lambda Legal’s challenge to Nevada’s ban on same-sex couples marrying, Sevcik v. Sandoval, which is now pending before the Ninth Circuit.

The GlaxoSmithKline v. Abbott Laboratories case involved antitrust, contracts and business tort claims filed by GlaxoSmithKline (GSK) against Abbott after Abbott quadrupled the cost of its protease inhibitor (PI) booster drug, Norvir. Abbott had marketed Norvir as a PI booster to GSK and other manufacturers of HIV medications, which allowed people with HIV to take smaller doses of PIs and thereby reduce the negative side effects. Abbott implemented its price increase shortly after GSK launched a new PI in 2003 that was designed to be boosted with 200 mgs of Norvir. During jury selection for the trial, counsel for Abbott used his first peremptory challenge to strike a prospective juror because he is a gay man. Counsel for GSK objected and asserted that the U.S. Supreme Court’s 1986 ruling in Batson v. Kentucky precluded using peremptory challenges to strike jurors based solely on their sexual orientation. The judge questioned whether Batson applied to sexual orientation and over-ruled the objection.

In its amicus (friend of the court) brief, Lambda Legal argued that the Supreme Court’s ruling in Batson – that the Equal Protection Clause of the U.S. Constitution precludes using peremptory challenges to strike prospective jurors because of their race – should be applied as well to strikes based on a juror’s sexual orientation. Batson had already been extended to apply to sex, and the Lambda Legal brief arguedthat because sexual orientation discrimination should be given heightened scrutiny, it should be treated in the same way as race- and sex-based juror disqualifications.

“With this ruling, the Ninth Circuit made explicit what was implicit in the Supreme Court’s ruling in Windsor, and used that guidance to apply Batson here, determining that excluding prospective jurors based upon their sexual orientation perpetuates historical discrimination, undermines trust in the court system, and deprives the juror of the opportunity to participate in democracy and civic life,” Davidson added. “This is the first time a federal court has ruled that jurors cannot be disqualified based on their sexual orientation, and is yet another indication of the progress our community is rightfully making in convincing the courts that the Constitution’s protections extend fully to LGBT people.  We salute the law firms of Arnold & Porter and Irell&Manella, which represented GSK, and are proud to have assisted in achieving this landmark ruling.”