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.”