John M. Becker

US Appeals Court: Sexual Orientation Gets Heightened Scrutiny

Filed By John M. Becker | January 21, 2014 3:30 PM | comments

Filed in: Politics
Tags: discrimination protection, federal court, gay marriage, heightened scrutiny, judicial review, marriage equality, same-sex marriage, sexual orientation

scales_justice.jpgThe 9th Circuit Court of Appeals ruled unanimously today that lawyers cannot discriminate on the basis of sexual orientation in the jury selection process, meaning that potential jurors cannot be excluded from a jury solely because they are gay or lesbian.

While the ruling is important in and of itself, the underlying rationale the court used to arrive at their decision could turn out to be far more consequential: it held that discrimination on the basis of sexual orientation is subject to a stricter standard of review called heightened scrutiny, meaning governments would have to work much harder to justify policies that discriminate against LGB people.

Obviously, this could have major implications for government policies that discriminate against LGBT people in the area of, say, marriage.

BuzzFeed's Chris Geidner explains:

In describing the reason for applying the new standard, Judge Stephen Reinhardt examined the Supreme Court's June decision in Edith Windsor's case challenging the Defense of Marriage Act. Although equal protection claims brought based on sexual orientation have previously been judged under the lowest level of review, called rational basis, the 9th Circuit held that a higher standard now applies.

Writing for the three-judge panel, Reinhardt wrote:

"Windsor review is not rational basis review. 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 heightened scrutiny, in which equal protection claims are considered more carefully by courts reviewing challenged actions, the court concluded that Batson -- a Supreme Court case barring juror strikes based on race -- also applies to strikes based on sexual orientation.

A copy of the ruling is after the jump.

11-17357#83 by Equality Case Files

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