Ninth Circuit Court Invokes Heightened Scrutiny In Ruling On Booting Gay Jurors

Chris Geidner reports at Buzzfeed:

A federal appeals court Tuesday held that lawyers cannot exclude potential jurors from a jury based on their sexual orientation. The 9th Circuit Court of Appeals, in a unanimous decision, held that discrimination based on sexual orientation is subject to heightened scrutiny — a decision the court concluded has been made in action, though not in word, by the Supreme Court itself. Under that heightened scrutiny, in which equal protection claims are considered more carefully by courts reviewing challenged actions, the court concluded that Batson — a Supreme Court case barring juror strikes based on race — also applies to strikes based on sexual orientation.

From the ruling:

Windsor review is not rational basis review. 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 other words, Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation. This appeal’s central question is whether equal protection prohibits discrimination based on sexual orientation in jury selection. We must first decide whether classifications based on sexual orientation are subject to a standard higher than rational basis review. We hold that such classifications are subject to heightened scrutiny. We also hold that equal protection prohibits peremptory strikes based on sexual orientation and remand for a new trial.

This could have huge implications for marriage equality.

UPDATE: The National Center for Lesbian Rights applauds.

Today’s ruling by the Ninth Circuit, which covers much of the western United States, is a major advance for equality for lesbian, gay, bisexual, and transgender people. The court recognized that laws that treat persons as second-class citizens based on sexual orientation are anathema to the U.S. Constitution’s guarantee of equality. Today’s ruling will make it exceedingly difficult for states to justify laws that discriminate based on sexual orientation.

UPDATE II: Analysis from the San Jose Mercury-News.

In a decision that provides sweeping new legal protections to gays and lesbians, a federal appeals court on Tuesday found that barring potential jurors based on sexual orientation is unconstitutional based on U.S. Supreme Court precedents that similarly forbid such discrimination against women and minorities. In a unanimous ruling, the 9th U.S. Circuit Court of Appeals broke new legal ground by concluding that sexual orientation deserves the same strong legal protections in jury selection as other categories, citing the Supreme Court's decision last year striking down a federal law denying federal benefits to same-sex couples. 9th Circuit Judge Stephen Reinhardt, writing for a three-judge panel, said that bumping prospective jurors based on their sexual orientation continues a "deplorable tradition of treating gays and lesbians as undeserving of participation in our nation's most cherished rites and rituals." "They deprive individuals of the opportunity to participate in perfecting democracy and guarding our ideals of justice on account of a characteristic that has nothing to do with their fitness to serve," the 9th Circuit ruled.