Sunday, January 26, 2014

Another Strike at Gay Discrimination | New Jersey Law Journal

Judge Reinhardt's opinion barring lawyers' use of peremptory strikes to remove gay jurors is noteworthy because it  is driven by two key opinions by Justice Anthony Kennedy in Lawrence v. Texas and Windsor v. U.S., which have elevated distinctions based on sexual orientation to a classification that requires heightened scrutiny similar to that accorded discrimination based on gender.  Ed Whelan at National Review online views this as "mischief' by a liberal "arch-activist".  No shame in that but Whelan is right that Reinhardt is drawing from Windsor a principle not expressly adopted - that gender differences are subject to heightened scrutiny.  Even in her moment of triumph in U.S. v. VMI Justice Ginsburg was not able to get the majority to embrace strict scrutiny of gender classifications. - GWC

Another Strike at Gay Discrimination | New Jersey Law Journal -by the Editorial Board:
The United States Court of Appeals for the Ninth Circuit last week barred the use by lawyers of peremptory challenges of potential jurors on the ground that the venireman (to use the old phrase) is gay or lesbian."Gays and lesbians have been systematically excluded from the most important institutions of self-governance," Judge Stephen Reinhardt wrote for a unanimous three-judge panel in SmithKline Beecham (GSK) v. Abbott Laboratories. "Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation's most cherished rites and rituals."This decision extends a line of cases that began in 1986 when, in Batson v. Kentucky, the Supreme Court barred racially based peremptory strikes. Then in 1994, the court began to extend the principle to women. In J.E.B. v. Alabama, it held that when the gender of the juror coincided with the subject matter of the case, the potential for an impermissible strike based on sex increased substantially. The current dispute arose from GSK's allegation of unfair trade practices by Abbott that drove up the price of a GSK HIV drug that Abbott had licensed. HIV drugs are of particular salience among San Francisco's homosexual community, which was among the hardest hit when the epidemic first appeared 35 years ago.....
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