Opinion

Alison Frankel

Judges build on Supreme Court’s Windsor ruling to extend gay rights

By Alison Frankel
January 22, 2014

Justice Antonin Scalia of the U.S. Supreme Court got at least one thing right in his controversial dissent last term in U.S. v. Windsor, the case that struck down federal prohibitions on same-sex marriage as an unconstitutional intrusion on the equal rights of gays and lesbians. In a 5-to-4 opinion by Justice Anthony Kennedy, the majority said its ruling addressed only the conflict between the federal Defense of Marriage Act and the laws of states that have approved same-sex marriage, not the right of a state to bar same-sex marriages. Chief Justice John Roberts’s dissent emphasized the limited scope of the ruling. But Justice Scalia predicted otherwise.

“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,” he wrote, in one of his dissent’s many hectoring passages. “Henceforth those challengers will lead with this court’s declaration that there is ‘no legitimate purpose’ served by such a law, and will claim that the traditional definition has ‘the purpose and effect to disparage and to injure’ the ‘personhood and dignity’ of same-sex couples, The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows.”

Unlike Scalia, I wouldn’t presume to discern any malicious intention in Justice Kennedy’s stirring language on the Fifth Amendment rights of same-sex spouses and their families. But Scalia was undeniably correct that Windsor would echo loudly in lower courts. In the 6-1/2 months since the ruling came down, judges in Ohio, New Mexico, Utah and Oklahoma have struck down laws barring same-sex marriage or restricting the rights of gay and lesbian married couples, citing Windsor’s equal rights reasoning (among other precedent) in every opinion. Though the Utah and Oklahoma rulings have been stayed for appeal and the Ohio injunction is also before a federal appellate court, these are hugely significant decisions.

They could end up being overshadowed, however, by a Windsor-based decision Tuesday from the 9th Circuit Court of Appeals in a case that didn’t actually have anything to do with same-sex marriage or states’ rights. A three-judge panel of the 9th Circuit found that Abbott Laboratories improperly excluded a gay man from serving on the jury in a trial of GlaxoSmithKline’s claims that Abbott improperly jacked up the price of certain HIV medications. In an opinion written by Judge Stephen Reinhardt, the appeals court held that under the Supreme Court’s ruling in Batson v. Kentucky, jurors may not be struck for discriminatory reasons – and that under Windsor, claims of discrimination against gays and lesbians must receive the same heightened scrutiny as those against other protected minorities. That might sound technical, but if the panel’s decision is upheld, it will be extremely difficult for any law in the 9th Circuit’s jurisdiction that discriminates against gays and lesbians – including same-sex marriage restrictions – to survive an equal rights challenge.

“We now have a holding in clear terms that any law that treats gay people differently is subject to heightened scrutiny,” said Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison, who won the Windsor case at the Supreme Court. “That’s Game Over…. If Windsor was the Battle of Normandy, this decision is the liberation of Paris.”

To understand the significance of the 9th Circuit’s decision, you have to know a little bit about how federal judges evaluate discrimination cases. Under Supreme Court directives, judges must look at the intent of the allegedly discriminatory law. If the laws target protected groups, such as women or racial minorities, they’re subject to heightened scrutiny and must show a compelling public interest in distinguishing minorities. (Justice Samuel Alito offered in his Windsor dissent, as example of a law that could survive heightened scrutiny, statutory rape laws that criminalize sex between adults and underage girls but not boys.) Under heightened scrutiny, if there’s no overriding policy reason to single out a protected minority, the law is unconstitutional. But not every target of discriminatory legislation meets the judicial test for protected minorities, and laws that classify people deemed to have “distinguishing characteristics” but not to be entitled to the highest degree of protection are subject to “rational-basis review.” Rational-basis review is a much less stringent standard that considers government’s practical need to classify people differently.

The majority opinion in Windsor did not specify which standard of review the Supreme Court was applying to the Defense of Marriage Act, sidestepping arguments by DOMA opponents that a law classifying gays and lesbians should be subject to heightened scrutiny. The same-sex marriage decisions that have followed Windsor have not clarified which standard applies. The Ohio decision by U.S. District Judge Timothy Black held that gays and lesbians meet the criteria for protected minorities, so Ohio’s refusal to recognize out-of-state same-sex marriages must be evaluated with heightened scrutiny. (He found it was unconstitutional under that standard.) U.S. District Judges Robert Shelby in Utah and Terence Kern in Oklahoma held that under the precedent of their federal circuit, the 10th, rational-basis review applies to laws classifying gays and lesbians. (Even under the looser standard, they both found bans on same-sex marriage to be unconstitutional.)

The 9th Circuit ruling Tuesday removes any doubt about anti-discrimination protection for gays and lesbians in that appellate jurisdiction: “We must…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,” the court said. Judge Reinhardt and his panel colleagues – Judges Mary Schroeder and Marsha Berzon – ruled that their conclusion was dictated by the Supreme Court’s decision in Windsor. Even though the Supreme Court majority didn’t actually say it was applying heightened scrutiny to a law aimed at gays and lesbians, that’s what the court in fact did, according to the 9th Circuit. “Windsor review is not rational basis review,” the opinion said. “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.”

Ninth Circuit precedent, the panel conceded, had applied rational-basis review to laws targeting gays and lesbians. But that precedent cannot stand after Windsor, according to the opinion. “Windsor requires that when state action discriminates on the basis of sexual orientation, we 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,” the court said. And lest anyone think that the panel intended its holding to be restricted to discrimination against a gay juror, the opinion made clear that it’s not: “Windsor’s reasoning reinforces the constitutional urgency of ensuring that individuals are not excluded from our most fundamental institutions because of their sexual orientation.”

Now what happens? Abbott, which is represented in this case by Munger, Tolles & Olson, said only in a statement that it is evaluating its options. It can certainly request an en banc rehearing from the entire 9th Circuit, though the panel was unanimous in its holding. Or, of course, it can ask the Supreme Court to take up a question the majority in Windsor tried very hard not to answer directly. A representative of ViiV (a GSK joint venture that’s prosecuting the litigation against Abbott) said only that the company is pleased that the 9th Circuit granted a new trial.

So for now, at least, laws in California, Oregon, Washington, Montana, Idaho, Nevada, Arizona, Hawaii and Alaska may not curtail the equal rights of gays and lesbians – including their right to same-sex marriage – even if states believe there’s a rational basis for doing so.

This is just what Justice Scalia was afraid of.

(Reporting by Alison Frankel)

Post Your Comment

We welcome comments that advance the story through relevant opinion, anecdotes, links and data. If you see a comment that you believe is irrelevant or inappropriate, you can flag it to our editors by using the report abuse links. Views expressed in the comments do not represent those of Reuters. For more information on our comment policy, see http://blogs.reuters.com/fulldisclosure/2010/09/27/toward-a-more-thoughtful-conversation-on-stories/
  •