Ninth Circuit: Anti-Gay Laws Presumed Unconstitutional Under DOMA Decision

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

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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 will now have to step in when it appears that sexual orientation was the motivator. (For information on related topics, see Discrimination in Jury Selection and Can Lawyers Discriminate Against Jurors Because of Sexual Orientation?)

This ruling now becomes the law for federal courts within the Ninth Circuit. But, its reach goes far beyond the courtroom and may subject any law that targets gay people to a heightened level of judicial analysis.

Fruits of the DOMA Decision

The Ninth Circuit based its decision on the U.S. Supreme Court’s 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 also rely upon the decision, so its impact could extend beyond these territories. And, for the reasons discussed below, the decision could be applied to any law within the circuit aimed at gay people. In this respect, the decision has the potential to affect many more laws and practices than jury selection alone.

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.

But the losing party in the Ninth Circuit decision, Abbott Laboratories, may ask the court to hear the case en banc (with a full court) or appeal the decision to the U.S. Supreme Court (which doesn't have to take the case). If the Supreme Court takes up the appeal, 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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