When the 9th Circuit Court of Appeals recently issued a ruling upholding U.S. District Judge Virginia Phillips’s worldwide injunction halting enforcement of DADT, the court also issued an order for the government to clarify which level of scrutiny it is applying to sexual orientation following the court having noticed a discrepancy in a recent legal filing.
The conflict relates to the case United States of America v. Daniel Osazuwa, where defendant Osazuwa was convicted of assaulting a federal prison guard while incarcerated for failing to pay restitution associated with a bank fraud conviction.
The particulars of Osazuwa’s case are not really important. What is, however, is that during jury selection the government made a peremptory challenge to remove a juror who was, by all accounts, a lesbian. Osazuwa’s lawyers responded by filing a Batson challenge, that is to say where the removal of an individual who represents a special group is grounds for the trial to be invalidated. The government argued in February of this year that, among other reasons to refuse the challenge, precedent prevents extending Batson to sexual orientation because it is well established that sexual orientation is only given a rational basis test of judicial scrutiny.
Judicial scrutiny relates to the level of review courts apply when laws are challenged so as to weigh government interest verses constitutional rights or principles. There are three forms of scrutiny. From least to most rigorous they are: rational basis, heightened scrutiny, and strict scrutiny.
Rational basis is the default level of judicial review and would generally result in a ruling upholding the law in question based on the government’s interest.
Strict scrutiny, the most rigorous, applies where there is a so-called “suspect classification” such as in cases dealing with race. This is where a group has ”obvious, immutable, or distinguishing characteristics,” a history of persecution and a political powerlessness. Other groups this standard applies to include national origin, religion, citizenship, gender and sometimes poverty. If strict scrutiny is applied, the government’s interest must be compelling, the law must be narrowly tailored to accomplish its goal and it must use the least restrictive means to do so. Such a level of scrutiny would usually result in a striking down of the laws at question, though that is obviously not always the case.
Intermediate scrutiny, the middle ground between the two, demands the law or policy being challenged furthers an important government interest, a significantly higher obstacle to overcome than rational basis review but not as tough as strict scrutiny.
In the 9th Circuit order issued at the same time as the DADT ruling, the Court points out that in a July court brief the Obama administration argued that sexual orientation should be given a level of intermediate scrutiny. This was in the ongoing case of Golinski v. United States Office of Personnel Management where a federal worker is suing for the partnership rights she is denied because of DOMA. In what was hailed as a “historic” move, the administration argued on Golinski’s behalf that DOMA is indeed unconstitutional. In doing so it restated the belief that heightened scrutiny should apply to sexual orientation because gay people face political powerlessness and a history of persecution.
The 9th Circuit order notes: “In its answering brief in [the Osazuwa case], filed on February 17, 2011, the Government argued that this court was bound by precedents holding that classifications on the basis of sexual orientation are subject only to rational-basis review under the Equal Protection Clause. On July 1, 2011, however, the Government filed a brief before the U.S. District Court for the Northern District of California, arguing [in Golinski v. United States Office of Personnel Management] that “heightened scrutiny, rather than rational basis review, is the appropriate standard of review for classifications based on sexual orientation.””
The Court wants to know which side of this argument the Obama administration is placing itself on: “the Government is directed to file a supplemental brief of no longer than ten pages, addressing whether it adheres to the position that classifications on the basis of sexual orientation do not warrant heightened scrutiny under the Equal Protection Clause.”
Until now, gay rights has nearly always been subjected to the rational basis test and has suffered under this low level of scrutiny. (A notable exception being the Proposition 8 ruling where federal judge Vaughn Walker concluded California’s gay marriage ban failed even a rational basis test.) The Obama administration’s willingness to apply intermediate scrutiny was an important moment and altered the legal landscape where gay rights cases are concerned. As such, it has been cited in several legal arguments since, such as in the ongoing Proposition 8 case, a case involving a same-sex couple’s joint bankruptcy filing and even in DOJ investigations.
Therefore, while this might seem a matter of abstract legal argument, the interest for LGBT rights proponents cannot be overstated as they pin their hopes on an evolving and more favorable legal landscape.