by Mike Andrew - SGN Staff Writer

The Ninth Circuit Court of Appeals has ruled that the judicial standard of heightened scrutiny must be applied to cases of discrimination based on sexual orientation.

In a ruling issued on January 21, a three-judge panel of the court said unanimously that a Gay juror was improperly excluded from a jury because of his sexual orientation.

The case involved two pharmaceutical companies - Glaxo Smith Kline and Abbott Laboratories - in an unfair trade practice dispute over the pricing of rival HIV meds Norvir, Kaletra, and Lexiva. During jury selection, Abbott's attorney used his first preemptory challenge to exclude the only openly Gay member of the jury pool. Glaxo's attorneys then challenged the action, arguing that the exclusion was impermissible because it was based on sexual orientation.

In their appeal, Glaxo's attorneys cited Batson v. Kentucky, a 1986 case in which the U.S. Supreme Court ruled that jurors may not be excluded solely on the basis of their race. The Ninth Circuit, therefore, had to decide if constitutional protections against discrimination on the basis of sexual orientation parallel those against racial discrimination.

Writing for the court, Judge Stephen Reinhardt found that the Gay juror was, in fact, improperly excluded from the jury, because discrimination based on sexual orientation must be subject to 'heightened scrutiny.' Reinhardt, by the way, also wrote the Ninth Circuit's 2012 opinion striking Prop 8.

'This appeal's central question is whether equal protection prohibits discrimination based on sexual orientation in jury selection,' Reinhardt wrote in the Glaxo case.

'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.'

'Rational basis review' means that laws discriminating among different classes of people may not be based solely on animus or prejudice, but must have some rational relationship to a legitimate government interest.

'Heightened scrutiny' is a much more rigorous standard, which requires, as the Ninth Circuit ruled in the 2008 Don't Ask, Don't Tell (DADT) case Witt v. Department of the Air Force, that the discriminatory law 'must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest.'

This is a step forward in protecting LGBT people from discrimination. 'We have in the past applied rational basis review to classifications based on sexual orientation,' Reinhardt noted, citing several cases from the 1990s.

Reinhardt, however, based his insistence on heightened scrutiny on the U.S. Supreme Court's decision striking DOMA in USA v. Windsor.

'Windsor review is not rational basis review,' Reinhardt wrote in his opinion.

'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.'

Under that standard, the Ninth Circuit concluded that Batson also applies to jury exclusions based on sexual orientation.

The finding that Windsor requires heightened scrutiny of classifications based on sexual orientation gives this decision significance beyond the immediate issue of jury selection, however.

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