Ninth Circuit Court of Appeals judge Stephen R. Reinhardt
Ninth Circuit Court of Appeals judge Stephen R. Reinhardt (Photo: AP / Eric Risberg, Pool)

The U.S. Court of Appeals for the Ninth Circuit has become the first federal appellate court to rule explicitly that laws denying equal protection to gays and lesbians are subject to heightened judicial scrutiny — a decision that could have enormous ramifications in civil rights litigation all over the western United States.

The court took that step on Jan. 21 in SmithKline Beecham v. Abbott Laboratories, ruling that gay men and women can’t be removed from juries on the basis of their orientation.

No other legal conclusion can be drawn from United States v. Windsor, the 2013 U.S. Supreme Court decision that struck down the Defense of Marriage Act (DOMA), Judge Stephen Reinhardt wrote for a unanimous panel.

“Windsor review is not rational basis review,” Reinhardt wrote. “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.”

And just as Windsor denounced DOMA for demeaning homosexuals, Reinhardt concluded that the use of peremptory challenges for discriminatory purposes continues a “deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals.

“They tell the individual who has been struck, the litigants, other members of the venire and the public that our judicial system treats gays and lesbians differently,” he wrote.

It was an undeniably favorable outcome for Irell & Manella and Arnold & Porter. The firms not only broke novel legal ground but won a new trial for SmithKline on claims that Abbott inflated its price on an HIV medication to drive a competitor out of the market.

“We’re obviously very satisfied,” said Irell partner Alex Wiles. “They accepted our arguments and reached this important new conclusion of law. And they gave our clients a new trial, which it wanted and certainly felt it deserved.”

Gay rights advocates seemed even more thrilled by the ruling. Jon Davidson of amicus curiae Lambda Legal said the holding would apply not only to federal courts in the Ninth Circuit, but thousands of state courtrooms as well. Although California has a law protecting gay jurors, few other states do. “So this is a big deal for how gay, lesbian and bisexual jurors are treated throughout the Ninth Circuit,” he said.

Beyond jurors, the heightened scrutiny holding will help protect public school teachers and students, police officers and the citizens they interact with, and many others when the government treats them differently on the basis of orientation.

For one hard data point, Davidson pointed to the answer brief filed in the Ninth Circuit on that same day by supporters of Nevada’s ban on same-sex marriage. “There is no legal or factual basis for deploying heightened scrutiny in this case,” it says.

“Their timing was off,” Davidson said. “You can bet that this decision is going to feature prominently in our reply brief.”


The Abbott Laboratories case went to trial in 2011. During jury selection a venire member who works as a computer programmer at the Ninth Circuit briefly referred to “my partner” and used the pronoun “he” several times. When Munger partner Jeffrey Weinberger exercised his first peremptory challenge on that juror, plaintiffs attorney Joseph Saveri brought a Batson challenge.

“The litigation involves AIDS medications,” Saveri told U.S. District Judge Claudia Wilken. “It looks like Abbott wants to exclude from the pool anybody who is gay.”

Wilken said she wasn’t sure that Batson v. Kentucky, the high court landmark that outlawed race-based peremptory challenges, applied to civil cases or to the sexual orientation of jurors. And it would be difficult for a judge to discern a pattern of discrimination against gay jurors. “There is no way for us to know who is gay and who isn’t here, unless somebody happens to say something,” Wilken said.

She invited Weinberger to justify the challenge, but Weinberger instead said he agreed with Wilken’s reasoning. “I have no idea whether he is gay or not,” he said.

A spokeswoman for Munger Tolles referred questions to AbbVie, an Abbott research spinoff. AbbVie spokeswoman Adelle Infante said the company was reviewing the opinion and its options.

Before the Ninth Circuit, Munger partner Daniel Levin argued there were plenty of nondiscriminatory reasons to strike the prospective juror, including his familiarity with law from working at the Ninth Circuit. But the Munger team — which included Ninth Circuit nominee Michelle Friedland — let two lawyers sit on the jury, Reinhardt noted, and he found Weinberger’s claim that he was unaware of the juror’s orientation “far from credible.”"Abbott offered no reasons for the strike at the voir dire, but we know from the reasons offered on appeal after full deliberation by highly respected and able counsel that even the best explanations that counsel could have offered are pretextual,” Reinhardt wrote. “The record shows that there was purposeful discrimination here.”

Wilken was wrong too — it’s well-established that Batson applies to civil cases, Reinhardt wrote. And he agreed with the California Court of Appeal that the precedent can and should apply to gay and lesbian jurors without intruding on their privacy. Therefore, he held, a Batson challenge would be cognizable “only once a prospective juror’s sexual orientation was established, voluntarily and on the record.

“California’s successful application of Wheeler protections to sexual orientation for the past 13 years illustrates that problems with administration can be overcome, even in a large judicial system that comes in contact with a diverse population of court users,” Reinhardt wrote. Judges Mary Schroeder and Marsha Berzon concurred.

Irell partner Brian Hennigan and Arnold & Porter partner Lisa Blatt argued the case for SmithKline.

Irell’s Wiles said he wasn’t surprised at the outcome of Tuesday’s ruling. But three years ago at trial, he was asked, could he ever have expected the case to make civil rights history?

“Not until the first day of jury selection,” Wiles deadpanned.

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