The Ninth Circuit has handed down a landmark decision saying that jurors cannot be removed from juries on the basis of their sexuality, but this has a much broader impact that could ultimately speed up the marriage equality fight in several states.
As we reported last year, the question of whether it’s legal to remove a gay juror came as a result of a case brought against Abbott Laboratories (hereafter Abbott) and whether the company broke the law in 2007 by putting up the price of its AIDS drug Norvir by about 400%. While the drug itself wasn’t a big seller for the company, it was used in small doses by other drug companies. This meant that they would in turn have to pay more to obtain the drug and would therefore have to raise the price of their own drugs. At the same time as the price hike, Norvir then released its own comprehensive drug called Kaletra, essentially undermining the competition.
Competitor GlaxoSmithKline (GSK) thought this unfair. At the time GSK was selling a drug that used Norvir. GSK filed a suit of unfair business practices, alleging that Norvir’s makers Abbott had acted aggressively and, essentially, was using its position in the market in a way that violates established business standards.
With all that as a backdrop a jury was assembled, except Abbott decided to use its right to contest the inclusion of certain jurors in order to oppose the inclusion of Juror B after he revealed he’s gay. Abbott claimed that Juror B, as an openly gay man, could have a bias against the company. This, it said, it could support with evidence: Juror B had known someone who had died of AIDS and many in the gay community had protested Abbott’s price hike. They contended that they weren’t asking for Juror B to be removed because of his sexuality but rather that his particular history meant he may be biased.
GSK opposed removing the juror, saying he offered a valuable perspective on the alleged unfair business practices but at the same time that there was no reason to think that his personal life would affect how he judged the facts of the case more any other personal characteristic. In effect, they argued he was being removed for no other reason than his sexuality because his personal experiences and his sexuality were one. They also cited that while some gay men may have protested the price hike, Juror B was not among them.
A three-member panel of the Ninth Circuit Court of Appeals heard this specific issue last year and at the time it was hotly tipped as a ruling to watch. In January they ruled that removing a juror isn’t legal. Why are we reporting on this now? Well, Abbott could have appealed the case but the deadline for an appeal has now passed, meaning that Abbott has accepted the ruling as a final word on the issue. That’s important, and for a number of reasons.
The Ninth Circuit Decides a Whole Lot More than Jury Selection
While recognizing that the Supreme Court of the United States has never directly answered a question like this, and that until now sexuality has not been treated with the same higher threshold as gender or race, the Court found that there is an adequate legal basis to say that discrimination on grounds of sexual orientation should be given heightened scrutiny, the highest level of judicial attention under which it is incredibly difficult to uphold discriminatory laws or practices.
The court arrived at this conclusion by citing, among others, Windsor v. United States, the ruling that saw the Supreme Court of the United States strike down the federal Defense of Marriage Act’s Section 3 last year. This is where things get controversial because the Supreme Court didn’t in fact use heightened scrutiny but it did say that discrimination on the basis of a person’s sexuality is unconstitutional if it is done with the intent of expressing moral disapproval. That means the appellate court has inferred that heightened scrutiny should be used, probably because there is no other reason why one might discriminate in this way.
Due to the fact that the company did not seek to challenge the ruling, it now means the Ninth Circuit has established, pending an extraordinary move by the full court or from the Supreme Court, a binding precedent for the Circuit that discrimination on the basis of sexual orientation must be given the strictest level of review. It is largely believed that under this judicial test marriage equality bans can easily be defeated, especially given that they’ve been overturned in the past under the lowest test, for instance in the Proposition 8 case. It also means that states lacking gay-inclusive nondiscrimination laws may now be particularly vulnerable.
This precedent means that all the states under the Ninth Circuit’s jurisdiction will now have to apply heightened scrutiny, including Alaska, Arizona , all of California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Several of those states, of course, still have laws like marriage bans and adoption bans on their books.
The Human Rights Campaign has called this an important moment. “[Abbott's] decision not to appeal this ruling may turn out to be a pivotal moment in the quest for marriage equality in every state in this country and greater constitutional protections for all LGBT Americans,” HRC President Chad Griffin is quoted as saying. “We thank the company for standing on the right side of history.”
How the lower courts will apply this decision will have to be seen over the next few weeks and months, but it could allow marriage equality and even wider discrimination cases to take on new life and urgency, seeing them progress through the courts at a much more accelerated rate. The Supreme Court, it seems, is in for a busy gay rights year as no doubt this issue will crop up again, and soon.
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