Cross-posted from Justia's Verdict.
In the same-sex marriage cases that were heard and decided by the U.S. Supreme Court earlier this summer, gay/lesbian rights advocates urged the Justices to declare broadly that laws that discriminate against persons based on sexual orientation should be considered constitutionally suspect, and thus should trigger "heightened judicial scrutiny." That is another way of saying that any such law should be struck down by a court unless the government can prove, by convincing evidence, that the law really does accomplish important governmental objectives, and is not simply based on prejudice or outmoded stereotypes. Under a "heightened scrutiny" test, federal and state bans on same-sex marriage would be very unlikely to survive.
The Supreme Court avoided answering this question of which "level of scrutiny" should apply to laws that differentiate among people on the basis of sexual orientation; indeed, if the Court had not avoided this question, it could not have effectively dodged the question it did not want to answer: whether all states have to recognize same-sex marriage. But the Court's failure to address the "level of scrutiny" issue leaves unresolved questions regarding the legal treatment of sexual-orientation discrimination in other important settings besides marriage. One such setting is raised by an interesting and important case, Smithkline Beecham Corp. v. Abbott Laboratories, which is being argued next month in the United States Court of Appeals for the Ninth Circuit. At issue in Smithkline Beecham is whether it is constitutionally permissible for a lawyer to "strike" (remove) would-be jurors from a case because of their sexual orientation. In this antitrust lawsuit involving HIV medications, an attorney for one of the companies exercised a so-called "peremptory strike" (also known as a "peremptory challenge")-effectively removing a possible juror from inclusion in the jury-because the would-be juror was "or appears to be, could be, homosexual." Peremptory challenges allow each side of a case to strike (remove) a certain number (with the number being equal for both sides) of would-be jurors for no supportable reason, but instead because of hunches or intuitions held by the lawyers about how sympathetic particular persons would be as jurors.
Background on the Theory and Practice of Peremptory Challenges
Peremptory challenges have been around in American jurisdictions for a long time. They are distinguishable from so called "strikes for cause," a term used to describe the right each lawyer has to remove from the jury pool all persons who are shown to be actually incapable of rendering an impartial decision. Some analysts think that if lawyers ask (as they may need to ask) tough questions to would-be jurors to determine whether particular individuals should be removed for cause, peremptory challenges are needed to remove those would-be jurors who might have been put off or offended by the tough questioning. And some people (though not I) think that peremptory challenges enhance the legitimacy of the judicial system, insofar as the parties may more readily accept a decision that is reached by a decision-making body that they themselves helped shape. But the Supreme Court has repeatedly made clear that no constitutional right to peremptories exists; and some states have severely curtailed their use in state courts.
Moreover, while the essence of peremptories is that they needn't be based on any good reasons, the Supreme Court has held that they cannot be based on some bad reasons-most particularly, race and gender. So whenever it is shown that a lawyer exercised a peremptory strike because of a would-be juror's race or sex, the Fourteenth Amendment's guarantee of equal protection of the laws is said to be violated. (One might ask why the Equal Protection Clause governs private lawyers exercising peremptories in lawsuits between private parties. The answer is that because trials are quintessentially governmental operations, and because it is technically the judge who dismisses a would-be juror from the pool-albeit at the behest of the lawyer exercising the strike-the Constitution's equality norms apply here.) But the Supreme Court and lower federal courts have been reluctant to add other criteria, beyond race and sex, that are constitutionally impermissible bases for the use of peremptories (although one famous line of Supreme Court cases frowns on eliminating jurors because of wealth.) In the Smithkine case, the Ninth Circuit will have to decide whether to add sexual orientation to the list of improper criteria.
An Understandable Concern About Slippery Slopes, and One Answer: Eliminate Peremptories Altogether
The judicial reluctance to expand the list of bases on which peremptories may not be premised stems in part from a concern over slippery slopes. As one lower court observed when confronted with the question whether age should be a constitutionally impermissible ground for peremptories: "if the age classification is adopted, surely blue-collar workers, yuppies, Rotarians, Eagle Scouts, and an endless variety of other classifications will be entitled to similar treatment. These are not the groups that the court has traditionally sought to protect from under-representation on jury venires."
So the slippery slope problems here are real. Over the past few decades, a handful of the Justices who have served on the Court, perhaps most notably Justice Breyer, have been unmoved by the prospect of a slippery slope regarding peremptories, because these Justices think that the Court should reconsider whether any peremptory challenges can be constitutionally exercised. One reason for Justice Breyer's skepticism about peremptories is the difficulty of proving an improper motive on the part of lawyers. Because peremptories are supposed to be usable based on irrational hunches, lawyers can give bizarre reasons to explain their use of peremptories and still must be believed, even if race or sex was, in fact, the actual motivation behind the peremptory strikes. So eliminating race- or gender-based peremptories may, in the real world, require eliminating all peremptories. (The Smithkline case illustrates this; it is remarkable that the case has made it this far, because the lawyer exercising the peremptory based on sexual orientation could likely have explained the peremptory on other, idiosyncratic grounds and been believed.)
The Link Between Jury Service and Voting
Another reason for being constitutionally skeptical about peremptories is that jury service has traditionally been tied, and analogized, to voting. This linkage makes sense: jurors, like individuals casting ballots for members of Congress or the President, exercise their power by voting for particular results; jurors implement policy when they decide cases, just as voters help shape policy by electing representatives or adopting initiatives. And throughout American constitutional history, voting and jury service have been considered "political rights" governed not so much by the Fourteenth Amendment, but more directly by the Fifteenth (which prohibits race discrimination in voting); the Nineteenth (which prohibits gender discrimination in voting); the Twenty-Fourth (which in effect prohibits wealth discrimination in voting), and the Twenty-Sixth (which prohibits age discrimination in voting.)
If we take the juror-as-voter analogy seriously, then removing people from juries becomes more problematic, because certainly we would not allow governmental actors (at least not since the Supreme Court decided important cases dating back to the 1960s) to prevent any would-be voter from participating in any particular election unless there were a compelling justification for doing so.
But for those who are not yet ready to dispense with all peremptories, toeholds on the slippery slope are needed. One such toehold is hinted at in the analysis above-at the very least, the groups that receive textual protection in the Constitution from discrimination in voting (groups defined by race, gender, wealth and age) should also be protected from discrimination in jury service. So far, the Supreme Court has embraced protection for the first three kinds of groups (defined by race, gender and wealth) and has not ruled on the fourth (defined by age.)
The Role of Equal Protection Doctrine
Yet another set of stopping points down a slippery slope comes not from the voting rights amendments (the 15th, 19th, 24th and 26th), but from equal protection doctrine. The idea here would be that those groups of people who are generally protected from discrimination under the equal protection clause (groups defined by race, gender, marital status of parents, perhaps religion, etc.) should also be protected in the peremptory challenge setting. That is why the Supreme Court's failure to make clear the standard of review it was applying in United States v. Windsor (the case from June striking down part of the Defense of Marriage Act, or DOMA) becomes important here.
The oral argument in Smithkline should be interesting. The panel of Judges Schroeder, Reinhardt and Berzon is, even more so than the three-judge panel in the Proposition 8 case, liberal by Ninth Circuit standards. If one had to bet, one might expect this panel to frown on the use of sexual orientation as a basis for peremptories. And if the Ninth Circuit does invalidate sexual-orientation-based peremptories, then the Supreme Court may end up being interested in the case, and could render a ruling that would, directly or indirectly, bear on the question of same-sex marriage bans too. A lot to keep watch on in the coming months.