In a decision on Tuesday, January 21, 2014, the United States Court of Appeals for the Ninth Circuit held in a corporate case, Smithkline Beecham Corporation, DBA GlaxoSmithKline v. Abbott Laboratories (GSK v. Abbott), that a party cannot dismiss a juror for being a homosexual. This case arose from a corporate dispute between GSK and Abbott regarding the pricing of HIV medications. While selecting the jury in this matter, Abbott used one of their strikes to dismiss the only juror who identified himself as a homosexual. GSK argued that Abbott could not strike the juror simply on the basis of sexual orientation. The Ninth Circuit held that, not only are classifications based on sexual orientation subject to heightened scrutiny, but it is a violation of the Equal Protection Clause to strike a juror based on sexual orientation. In order to understand why this is important, we must first discuss what the term “heightened scrutiny” means and how this could affect future legislation.
When analyzing whether a law or action that differentiates between certain groups of people violates the Equal Protection Clause of the US Constitution, Courts apply a standard of review based upon the group being allegedly discriminated against. There are three different standards of review: rational basis review, intermediate scrutiny, and strict scrutiny. The first, rational basis review, is the easiest standard of review to overcome. It simply states that, if a law differentiates between classes of people, there must be some rational reason for doing so. As a result, when a law is reviewed under this standard, it is almost always upheld. However, if the Court cannot think of a rational basis for the law, then the law will be deemed unconstitutional. Historically, rational basis review has been applied to cases involving classifications based on sexual orientation.
The second standard of review, intermediate scrutiny, states that the class must serve an important governmental objective and the means are substantially related to achieving that objective. Therefore, if the Court finds that there is no important government objective which justifies the alleged discrimination, then the law will be deemed a violation of the Equal Protection Clause. This standard is routinely applied to laws that differentiate classes of people based upon gender. Finally, the third standard of review, strict scrutiny, provides the highest level of protection and is the most difficult to overcome. This standard states that the means must be narrowly tailored to achieve a compelling government interest. Therefore, if the Court finds that there is no compelling government interest which justifies the alleged discrimination, then the law will be deemed unconstitutional. This standard is applied to laws that differentiate based upon race.
In GSK v. Abbott, the Court merely stated that sexual orientation is subject to a “heightened scrutiny” and even discussed why it was not specifying which heightened level of scrutiny to apply. Regardless, this case is currently being appealed to the United States Supreme Court, so it is not certain whether the Ninth Circuit’s decision will even stand. However, if it does, then the LGBT community as a whole will receive higher protection under the Equal Protection Clause than ever before.