The 9th Circuit Court of Appeals, in a unanimous decision, held that discrimination based on sexual orientation is subject to heightened scrutiny — a decision the court concluded has been made in action, though not in word, by the Supreme Court itself.
In describing the reason for applying the new standard, Judge Stephen Reinhardt examined the Supreme Court’s June decision in Edith Windsor’s case challenging the Defense of Marriage Act. Although equal protection claims brought based on sexual orientation have previously been judged under the lowest level of review, called rational basis, the 9th Circuit held that a higher standard now applies.
Writing for the three-judge panel, Reinhardt wrote:
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.
Under that heightened scrutiny, in which equal protection claims are considered more carefully by courts reviewing challenged actions, the court concluded that Batson — a Supreme Court case barring juror strikes based on race — also applies to strikes based on sexual orientation.
As Geidner says, this is a very broad ruling. By subjecting sexual orientation claims in general to heightened scrutiny, it means that a different and more strict legal set of legal protections must be applied to claims involving sexual orientation, the same level of protections extended to racial and gender discrimination claims.
That's a pretty big deal, because it means that in finding sexual orientation is subject to heightened scrutiny, it means that all kinds of discrimination claims must be given serious consideration, and that the official view of the courts must be that LGBTQ Americans are a protected class of litigants
that the court admits society has discriminated against, the same as racial and religious minorities.
In other words, the ruling has major implications for equality far beyond that of just jury duty. And that's a good thing. It also means that the Supreme Court will have to now weigh in on heightened scrutiny as it applies to LGBTQ Americans, which could pave the way for true equality across the country and not just a patchwork of state laws.
Judge Reinhardt's reasoning is that the Supreme Court all but established the heightened scrutiny precedent by deed in last June's decision to strike down parts of DOMA, even if they punted on the question as far as a technical standpoint. Therefore, the standard exists and should be applied to all federal laws, and by default, state and local laws as well.
It's a big one, folks. A big one indeed.
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