When the U.S. Supreme Court made history in June by striking down the Defense of Marriage Act, the substantive holding was immediately clear: the discriminatory federal law “demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify.” What was not exactly clear was what, if any, sort of legal standards the justices set for future courts. A federal appeals court ruling issued Tuesday finds the justices set a new, heightened standard for justifying discrimination on the basis of sexual orientation.
In a ruling holding that lawyers cannot discriminate against gay people when selecting juries, a unanimous panel for the U.S. Court of Appeals for the Ninth Circuit held that courts must apply what is known as “heightened scrutiny” when assessing laws or policies that discriminate on the basis of sexual orientation. Though the Ninth Circuit does not state precisely how much skepticism it will apply to laws that discriminate against gay litigants in the future, the phrase “heightened scrutiny” is a powerful one — often, laws subject to this scrutiny are treated as preemptively unconstitutional. Indeed, the Ninth Circuit’s opinion could potentially put sexual orientation discrimination claims on similar footing with race or gender discrimination claims, and require the government to meet a very high burden to justify a discriminatory law.
Over the years, the U.S. Supreme Court has deemed certain classifications as “suspect” or “quasi-suspect” under the U.S. Constitution’s Fourteenth Amendment. The words “heightened scrutiny” are frequently used to describe the high level of skepticism applied to laws that rely on such classifications. Laws that discriminate by race are subject to the most rigorous, “strict scrutiny,” while laws that discriminate by gender are subject to “intermediate scrutiny.” Because it wasn’t clear whether the U.S. Supreme Court applied heightened scrutiny in United States v. Windsor, the federal appeals courts who have since struck down their same-sex marriage laws citing that decision have continued to use the lowest standard of review, rational basis.
But writing for a unanimous court Tuesday, Judge Stephen Reinhardt said Windsor implicitly applied heightened scrutiny to sexual orientation, even if the opinion didn’t say so:
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.
Since the Windsor decision, two other federal trial courts have cited the ruling to strike down their same-sex marriage bans. Those rulings, however, have not explicitly departed from “rational basis review” — at least when evaluating how skeptically judges should view laws that discriminate against gay people — but instead cited Windsor‘s holding that “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” The Ninth Circuit’s opinion suggests that anti-gay laws are subject to a greater degree of skepticism than the Utah and Oklahoma courts applied, although whether those laws will be treated as skeptically as a law that discriminates against African Americans or women remains an open question.
If the Ninth Circuit’s reasoning is not overturned by a special panel or the U.S. Supreme Court, it means that litigants in that West Coast jurisdiction will have a stronger legal footing for challenging a range of laws that discriminate on the basis of sexual orientation. This case, for example, concerned sexual orientation during jury selection. Under the Ninth Circuit’s opinion, gay men, lesbians and bisexuals could potentially enjoy greater protection not just to marry, but in employment, housing, and a host of other areas in which their community still experiences discrimination — at least to the extent that the government is responsible for that discrimination. It could also make the difference in a Nevada challenge to that state’s same-sex marriage ban on its way to the Ninth Circuit. The lower court upheld the law using the rational basis standard.
It is less clear whether the reasoning of three judges appointed by Democratic presidents — including a lead author known as a liberal lion — will be adopted in other circuits or by the Republican-controlled Supreme Court.