Ninth Circuit: Anti-Gay Laws Presumed Unconstitutional

Learn about the implications of a holding that makes it tougher to discriminate based on sexual orientation.

In January, 2014, the Ninth Circuit Court of Appeals found it unconstitutional for a lawyer to dismiss a prospective juror because of the latter's sexual orientation. (SmithKline Beecham Corp. v. Abbott Laboratories.) Though lawyers typically don’t have to give a reason for exercising a peremptory challenge on a prospective juror, many courts now have to step in when it appears that sexual orientation was the motivator. (For related information, see  Discrimination in Jury Selection.)

This ruling became the law for federal courts within the Ninth Circuit.

After the  SmithKline  decision, in 2015, the U.S. Supreme Court decided  Obergefell v. Hodges, holding that that same-sex couples have an equal right to marry. That decision, while not directly applicable to bias in jury selection, served as further acknowledgment of the right to equal treatment regardless of sexual orientation.

Interpreting Supreme Court Precedent

The Ninth Circuit based the SmithKline  decision on the U.S. Supreme Court’s 2013 decision striking down as unconstitutional a key part of the Defense of Marriage Act (DOMA), which had barred federal recognition of gay marriages performed in states where such marriages are legal. (U.S. v. Windsor.) In reaching its decision, the Supreme Court analyzed the justifications behind DOMA and the impact the law had on gay citizens.

The Ninth Circuit’s holding is binding precedent for federal courts in the nine western states that belong to the circuit, Guam, and the North Mariana Islands. But courts in other jurisdictions may choose to rely upon the decision.

Three Levels of Scrutiny

Laws that either confer advantages or impose disadvantages upon one group of individuals but not others are subject to challenge as violating the 14th Amendment’s Equal Protection Clause. Courts examining laws to determine whether they violate equal protection apply one of three levels of scrutiny, depending on the classification of the group impacted by the law. The "looser" the level of scrutiny, the more likely it is that the law will survive a constitutional challenge.

The toughest test: "Strict scrutiny" for “suspect” classifications

Classifications that are based on race, ethnicity, national origin, or religion, and those that impact certain fundamental rights (such as privacy, the right to vote, and access to the courts) are considered “suspect” and are subject to the highest standard of review, called “strict scrutiny.” Under strict scrutiny, a law will survive only if it can be shown to serve a compelling state interest and the classification is necessary to serve that interest.

The easiest test: Rational basis scrutiny for most laws

Most laws don’t make “suspect” classifications and are therefore subject to the lowest standard of evaluation, called “rational basis review.” Under a rational basis analysis, a law will pass muster if it is simply rationally related to any legitimate purpose.

A middle ground: Heightened scrutiny applied to laws affecting homosexuals

The middle level of scrutiny is “heightened” or “intermediate” scrutiny, which traditionally applied to laws discriminating along lines of gender or illegitimacy. Heightened scrutiny requires the government to show that the law’s classification serves an important state interest and that the law is at least substantially related to serving that interest.

The Ninth Circuit jury-selection decision added sexual orientation to the classifications subject to heightened scrutiny. According to the Ninth, the U.S. Supreme Court’s examination of the justifications for DOMA and its impact on gay people amounted to a heightened scrutiny analysis, even though the high court never explicitly stated that it was using this level of analysis.


Under the  SmithKline Beecham  decision, any law that classifies individuals by sexual orientation is now subject to heightened scrutiny within the Ninth Circuit. As noted, courts outside this circuit may choose to follow the rationale, too.

If the Supreme Court were to take up the issue, it would have the opportunity to explicitly confirm—or deny—that heightened scrutiny is the correct standard for laws classifying people based on sexual orientation.

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