On September 18 a three-judge panel of the 9th Circuit Court of Appeals heard oral argument in Smithkline Beecham Company v. Abbott Laboratories, an anti-trust case concerning the pricing of an HIV drug for which Abbott holds the patent. (An audio recording of the argument is available on the 9th Circuit’s website.) During jury selection at the trial, it appeared that counsel for Abbott used a peremptory challenge to eliminate a potential juror who is a gay man. The trial judge, relying on 9th Circuit precedent, allowed Abbott to use a peremptory strike, and Smithkline appealed the ultimate unsatisfying jury verdict, arguing, among other things, that it was entitled to a new trial because the elimination of the juror due to his sexual orientation violated the 14th Amendment.
Smithkline was relying on the Supreme Court’s Batson decision, which ruled that it violates the equal protection clause for counsel to use a peremptory challenge to keep somebody off a jury because of his race. In subsequent rulings, lower federal courts and many state courts have decided that the Batson rule applies to other characteristics besides race if, like race, they were “suspect” or “quasi-suspect” classifications for purposes of equal protection analysis. Smithkline argued that eliminating a gay juror without any explanation that was neutral regarding sexual orientation violates the Batson principle. This is a point already established in the California state courts, where the California Supreme Court ruled in 2008 in In re Marriage Cases that sexual orientation is a suspect classification under the California constitution. But the trial judge in the Smithkline case was in the federal judicial universe, and bound to follow 9th Circuit precedent. The 9th Circuit had ruled in prior cases that sexual orientation is not a suspect classification, and thus without the requirement of heightened scrutiny a trial lawyer would not have a burden of providing a neutral explanation for seeking to exclude a gay juror.
After the US Supreme Court decided U.S. v. Windsor this June, the 9th Circuit panel before which this appeal was pending asked the parties for supplementary briefing. Does Windsor invalidate the prior 9th Circuit precedent? Does Windsor’s treatment of a federal statute that discriminated based on sexual orientation lift such cases above the ordinary rational basis review into some form of heightened scrutiny that would preclude the use of peremptory challenges for the purpose of keeping gay people off a jury? If a lawyer can’t use a peremptory challenge, they would have to challenge the juror for “cause,” which requires persuading the judge that the juror could not render impartial service in the case. In their supplementary briefing, counsel for Smithkline argued that after Windsor the Batson rules apply to protect gay people from peremptory challenges to their jury service. Abbott, understandably, counters that the Windsor decision did not apply heightened scrutiny or identify sexual orientation as a suspect classification.
Looking at Justice Kennedy’s opinion for the Court, legal commentators (beginning with dissenting Justice Antonin Scalia) have found it less than clear as to the standard of judicial review that the Court was using. Justice Kennedy has now written three leading gay rights cases, Romer v. Evans (1996), Lawrence v. Texas (2003), and U.S. v Windsor (2013). Each of his opinions avoids using the vocabulary for constitutional analysis that legal scholars developed in response to the Court’s earlier due process and equal protection decisions. Kennedy never explicitly says what level of review he is using. Dicta in the cases can be construed to suggest that he is using some sort of heightened scrutiny, but the dispositive language in each ruling — the punch-line, as it were — can be construed to hold that the challenged state constitutional amendment, or state or federal statute, fails to satisfy rationality review because of the lack of a non-discriminatory justification. Lower courts are left to read tea leaves.
In the 9th Circuit, in cases involving the anti-gay military don’t ask don’t tell policy decided after 1996, the court of appeals has taken the position that Romer was an equal protection rational review case and that Lawrence was a heightened scrutiny due process case. What kind of case was Windsor? It arose under the 5th Amendment, since it was a challenge to a federal tax provision. The 5th Amendment does not have an explicit equal protection clause, but the Supreme Court has for almost half a century read into it an equal protection requirement equivalent to that expressly set forth by the 14th Amendment. In his opinion, Justice Kennedy focused most of his attention on the due process argument, identifying the legal and social status of marriage as being very important, such that exclusion from it was a deprivation of liberty. Rather late in the opinion he also invoked equality requirements, and ultimately wrote that DOMA Section 3 deprived gay people of the “equal liberty” guaranteed by the 5th Amendment, because there was no significant government interest that could justify such deprivation. Justice Scalia’s dissent, expressing consternation about the lack of doctrinal clarity, found the opinion contradictory, inasmuch as Kennedy never said that heightened scrutiny applied yet reached a conclusion that, Scalia argued, could not be reached through the application of the normal deferential rationality test.
During yesterday’s oral argument, Lisa Blatt, representing Smithkline, made a strong argument for finding that Windsor requires the 9th Circuit to abandon its most recent equal protection position on sexual orientation discrimination, incorporating the reasoning that the 9th Circuit used to find that Lawrence required heightened scrutiny of due process claims by gay litigants. Daniel Levin, representing Abbott, focused on the text of the Windsor opinion, when he finally got around to dealing with the constitutional issue, arguing that certain key phrases used here, similar to phrases Kennedy used in Romer in 1996, signaled a rational basis ruling.
Most of Levin’s argument, however, was devoted to trying to convince the court that the case should never have gone to jury selection. He contended that Smithkline’s complaint didn’t state a valid federal antitrust claim, and should have been dismissed as deficient. And he argued that if the court agreed with him, it was unnecessary to decide the Batson question on discrimination against gay jurors. (Blatt strongly argued to the contrary on rebuttal, contending that if there was any structural error in the trial, it was necessary for the court to remand the case for correction of errors). Levin actually focused much of his argument on the jury selection issue on other questions concerning what was actually said, contending that it was not established that Abbott’s trial counsel’s challenge was motivated by the juror’s sexual orientation. For one thing, trial counsel claimed he didn’t know the juror was gay, although Judge Reinhardt commented that one would have to be pretty dumb not to have figured that out in light of references the juror made to his same-sex partner during the voir dire questioning. For another, Levin pointed out that counsel asked jurors about their knowledge concerning the disputed drug, and this potential juror had heard of the drug. Levin also noted that the juror was an attorney employed by the court, another reason not related to his sexual orientation why counsel might seek to bar him from sitting on the jury. Blatt (and some of the judges) came back to trial counsel’s failure to articulate these reasons on the record, as he apparently preferred to use a peremptory challenge after the trial judge ruled that the Batson rule did not apply to this juror.
So, it is possible that the 9th Circuit panel will not have to answer the Batson question, depending what they think of Levin’s argument about the substantive merits of the case or the circumstances under which the juror was challenged. On the other hand, from the questions and comments of the judges, it appeared that if the court were to decide the Batson issue, it would be likely to rule that sexual orientation discrimination requires heightened scrutiny review and Batson would apply to bar the use of peremptory challenges for the purpose of keeping people off a jury because of their sexual orientation.