March 20, 2014 Practice Points

9th Cir. Uses Heightened Scrutiny to Examine Sexual Orientation

By Stanford L. Moore

The Ninth Circuit recently used heightened scrutiny to review an equal-protection claim based on sexual orientation. In SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014), Abbott was accused of artificially raising the price of HIV drugs. During voir dire, Abbott's attorney used a peremptory challenge against the only self-identified gay member of the venire. SmithKline objected, and the trial court overruled the objection. On appeal, the Ninth Circuit found that "the strike was based on a discriminatory motive," and "Batson prohibits strikes based on sexual orientation." See Batson v. Kentucky, 476 U.S. 79 (1986) (noting the privilege of peremptory strikes in selecting a jury is subject to the guarantees of the Equal Protection Clause).

Relying on U.S. v. Windsor, 133 S. Ct. 2675 (2013), SmithKline held that classifications based on sexual orientation are subject to heightened scrutiny. SmithKline, at 484. Although Windsor cited a rational-basis case and also to cases applying heightened scrutiny to defeat section three of the Defense of Marriage Act (DOMA) on an equal-protection basis, the Ninth Circuit said "Windsor review is not rational basis review." Judge Reinhardt began his opinion in SmithKline by noting that Justice Kennedy did not expressly announce a level of scrutiny in Windsor. In so doing, Judge Reinhardt looked at what the Supreme Court did, not what it said.

The Ninth Circuit concluded that the "lowest level of review does not look to the actual purposes of the law. Instead, it considers whether there is some conceivable rational purpose that Congress could have had in mind when it enacted the law." For Windsor, a hypothetical reason for DOMA's enactment was not sufficient. Windsor went further; it looked to DOMA's "design, purpose, and effect. " Windsor,at 2689. Moreover, Windsor's "careful consideration of DOMA's actual purpose and its failure to consider other unsupported bases is antithetical to the very concept of rational basis review." SmithKline, at 482.

Additionally, "[r]ational basis is ordinarily unconcerned with the inequality that results from the challenged state action." Normally, "words like harm or injury rarely appear in the Court's decisions applying rational basis review." (emphasis added). Id. Windsor, however, used these words repeatedly. The majority opinion in Windsor considered DOMA's "effect" on eight separate occasions. Indeed, Windsor was concerned with the "resulting injury and indignity" and the "disadvantage" inflicted on gays and lesbians. Windsor, at 2693.

Keywords: litigation, LGBT, sexual orientation, heightened scrutiny, equal-protection claim, Windsor, rational basis, DOMA, Ninth Circuit

Stanford L. Moore is a 3L at Case Western Reserve University in Cleveland, Ohio.


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