When the Supreme Court handed down its ruling in Windsor, the DOMA case decided last year, it was clear that even though it had a relatively narrow immediate effect, the substance of the ruling would have far-reaching implications. A good example is a ruling handed down by the 9th Circuit Court of Appeals on Tuesday requiring the application of heightened review in cases involving sexual orientation.
On the surface, the case would appear to have nothing to do with the DOMA ruling. Rather, it involves the question of whether attorneys can strike potential jurors in a lawsuit based solely on their sexual orientation. In a unanimous ruling, a three-judge panel ruled that they cannot do so. But the basis of the ruling is found in Windsor and Justice Kennedy’s largely unspecified arguments in favor of heightened scrutiny in cases involving sexual orientation.
Though longtime readers of this blog probably understand this already, perhaps I should explain for those who don’t. Since the late 30s, the Supreme Court has developed several different levels of scrutiny that they apply in cases involving different subjects. In cases involving “fundamental rights,” they apply strict scrutiny, which means that the policy being challenged must be the least restrictive means of achieving a compelling state interest. In cases involving “mere liberty interests,” they typically apply the rational basis test, which means that the policy being challenged be “rationally related” to a “legitimate” state interest. In practice what this means is that if they apply the rational basis test, there’s a very high chance that they’re going to uphold the policy being challenged because the standard being applied is so easy to meet; if they apply strict scrutiny, there’s a very high chance that they’re going to strike down the policy being challenged because the standard being applied is very difficult to meet.
But then there’s also something in between, referred to as heightened or intermediate scrutiny. Cases involving race typically must meet strict scrutiny. Cases involving sexual orientation have always had the rational basis test applied. Cases involving gender get intermediate scrutiny. In order to qualify for heightened or strict scrutiny, the group being affected must, in a nutshell, be one that has historically suffered discrimination and been denied equal access to political power to defend their own interests in the legislatures. Judge Reinhart wrote:
This appeal’s central question is whether equal protection prohibits discrimination based on sexual orientation in jury selection. We must first decide whether classifications based on sexual orientation are subject to a standard higher than rational basis review. We hold that such classifications are subject to heightened scrutiny. We also hold that equal protection prohibits peremptory strikes based on sexual orientation and remand for a new trial…
We have in the past applied rational basis review to classifications based on sexual orientation. In High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990), and Philips v. Perry, 106 F.3d 1420,
1425 (9th Cir. 1997), we applied rational basis review when upholding Department of Defense and military policies that classified individuals on the basis of sexual orientation. More recently, in Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008), an Air Force reservist brought due process and equal protection challenges to her suspension from duty on account of her sexual relationship with a woman. We considered the meaning of the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 653 (2003), and concluded that because Lawrence relied only on substantive due process and not on equal protection, it affected our prior substantive due process cases, but not our equal protection rules. As a result, although we applied heightened scrutiny to the substantive due process challenge in Witt, we did not change our level of scrutiny for the equal protection challenge. We stated that Lawrence “declined to address equal protection,” and relying on Philips, our pre-Lawrence decision, we continued to apply rational basis review to equal protection challenges. Thus, we are bound here to apply rational basis review to the equal protection claim in the absence of a post-Witt change in the law by the Supreme Court or an en banc court. Here, we turn to the Supreme Court’s most recent case on the relationship between equal protection and classifications based on sexual orientation: UnitedStates v. Windsor, 133 S. Ct. 2675 (2013). That landmark case was decided just last term and is dispositive of the question of the appropriate level of scrutiny in this case.
Windsor, of course, did not expressly announce the level of scrutiny it applied to the equal protection claim at issue in that case, but an express declaration is not necessary. Lawrence presented us with a nearly identical quandary when we confronted the due process claim in Witt. Just as Lawrence omitted any explicit declaration of its level of scrutiny with respect to due process claims regarding sexual orientation, so does Windsor fail to declare what level of
scrutiny it applies with respect to such equal protection claims. Nevertheless, we have been told how to resolve the question. When the Supreme Court has refrained from identifying its method of analysis, we have analyzed the Supreme Court precedent “by considering what the Court actually did, rather than by dissecting isolated pieces of text.”…
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.
This is not unusual for the court, unfortunately. Justice Kennedy’s ruling does not explicitly say that LGBT people are a “suspect class” and therefore must be given the extra protection of heightened review, but the logic of the ruling clearly supports that conclusion even if it was not explicitly stated. If you trace Justice Kennedy’s three major rulings on LGBT equality — Romer (1996), Lawrence (2003) and Windsor (2013) — you can see him edging closer and closer to announcing a requirement of heightened scrutiny, but never quite getting there even though the logic of his opinions clearly supported it. Now the 9th Circuit has essentially cashed the check that he wrote but post-dated. It will be very interesting to see if other courts of appeal do the same thing in cases that will probably seem unrelated to marriage equality on the surface.