August 16, 2013

Another Front in the Same-Sex Equality Campaign: Jury Service, Peremptory Challenges, and the Smithkline Beecham Corp. v. Abbott Laboratories Case Pending in the Ninth Circuit

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.

August 7, 2013

Scholarship in the Courts

Professor Jack Chin is conducting a series of interviews with scholars whose works have been cited by the U.S. Supreme Court. Professor Chin shares that in common with his interview subjects; one of his articles was cited in both the majority and dissenting opinions issued by the U.S. Supreme Court in Chaidez v. United States on February 20.

You can read the interviews at PrawfsBlog.


August 1, 2013

Why California Should Repeal Proposition 8

Part Two in a Two-Part Series on What Should Happen to Same-Sex Marriage in California After Hollingsworth v. Perry. Cross-posted from Justia's Verdict.

In the space below, I continue to analyze what will-and what should-happen to California's voter-adopted ban on same-sex marriage, Proposition 8, in the wake of the U.S. Supreme Court's ruling earlier this summer in Hollingsworth v. Perry.  Two weeks ago, in Part One of this two-part series, I argued that the request made on July 11 by the proponents of Proposition 8 to get the California Supreme Court to order County Clerks to stop granting same-sex marriage licenses-Clerks have been issuing same-sex licenses for about a month-was unlikely to be successful.  Today, after elaborating a bit more on this post-Perry litigation, I move beyond the judicial arena to the ballot box, where I think repeal of Proposition 8 by the California electorate is feasible.

A Recent Development:  The San Diego County Clerk Asks the California Supreme Court to Weigh In

Shortly after my last column was posted, the County Clerk for San Diego County filed a separate request in the California Supreme Court asking for an order declaring that Proposition 8 should continue to be enforced by County Clerks, and preventing the Governor, the Attorney General, and the State Registrar from trying to force the San Diego Clerk to issue same-sex marriage licenses.  The San Diego Clerk's arguments echoed those made to the California Supreme Court by the initiative's proponents themselves the week before.  As it did with the proponents' request, the court refused to grant the San Diego Clerk an immediate block on same-sex marriage license issuance, but set a briefing schedule so that the court could decide whether to fully address the merits of the dispute in the coming month(s).

I don't expect the California Justices to accept the San Diego County Clerk's invitation to wade into this dispute in depth, for many of the same reasons that I discussed in Part One in connection with the proponents' request:  (1) The California Supreme Court's review is discretionary; (2) The case turns largely on the best way to interpret a federal district court order, and state courts will usually refrain from getting into contested interpretations of federal court orders; (3) The federal court order, by its straightforward terms, applies broadly to the County Clerks in Los Angeles and Alameda, so that unless those two individuals challenge the federal court order, same-sex marriage licenses will continue to issue from those Counties (and thus in the State) in any event; and (4)  Even if the state law questions-about the independence of County Clerks from the Governor or State Registrar and the obligation to continue to enforce laws that have not yet been invalidated by appellate courts-are interesting and important, there will be better cases down the road in which to reach those issues.

And here's an additional reason why the San Diego Clerk's request will likely be rejected by the California Supremes:  unlike the Proposition 8 proponents, the San Diego Clerk (who is arguably subject to the federal court order) might have standing in federal court to seek a ruling-from that court itself-that he is not covered by the federal order and will not be held in federal contempt if he refuses to issue same-sex marriage licenses.  A federal court faced with such a such a case might, at that point, try to enlist the help of the California Supreme Court to answer the question whether County Clerks are subject to the "control or supervision" (the term used in the federal court order) of state-level officials.  But the California Supreme Court would seem well-advised to wait for such a request (if one ever materialized) before opining on these matters.

Moving from the Courtroom to the Ballot Box:  Repeal of a Measure No Longer Supported by the People

Based on the analysis offered above, I don't expect the issuance of same-sex marriage licenses in California to stop anytime soon.  And so, for practical purposes at least, California's ban on same-sex marriage will become a dead letter.  Is that where the Proposition 8 political-legal opera should end?  To my mind, the answer is no; I think Proposition 8's true final Act should be repeal at the ballot box.

If Proposition 8 is not, in practice, limiting gay marriage, why would repeal be necessary or helpful?  For starters, we must remember that a judicial invalidation of a law and an injunction against its enforcement aren't the same as getting rid of the law; the measure remains on the books, and conceivably could spring back to life if a different Governor or Attorney General tried to reopen the case and undo the federal court injunction by defending Proposition 8 on the merits (something Governors Schwarzenegger and Brown, and Attorneys General Brown and Harris, never did.)  Cases (like Perry) that were never actually contested on the merits between the appropriate plaintiffs and defendants are-because of the absence of a true adversarial clash in the courtroom resulting in a judgment-strong candidates for reopening, should a particular Governor or Attorney General want to do so.

But, someone might respond, the political climate in California is moving in the opposite direction-in favor of, not against, same-sex marriage.  So the likelihood of a new Governor or Attorney General trying to resurrect Proposition 8-especially after hundreds of thousands of same-sex couples in the state already get married-is very slim.  I think that's probably true.  But remember that Governors and Attorney Generals get elected based on many issues, and they may win office in spite of, rather than because of, their position on any one subject.  Moreover, after they assume office, they sometimes take actions that seem to go against the views of a majority of voters, as Schwarzenegger and Brown themselves did when they refused to defend Proposition 8 when the Perry lawsuit was filed in 2009, a time when the state's electorate may very well still have favored the measure.

But all that brings me to the second, and more important, reason to repeal Proposition 8:  It no longer reflects the views of Californians, and state law on fundamental questions like this ought to accord with the true beliefs of state voters.  Proposition 8 passed in 2008 by a 52-48 margin, and a recent LATimes opinion poll suggests that a similar measure today would be supported by only 38% of voters, with 56% favoring same-sex marriage equality-a huge change in just five years.  But the only poll with true credibility is the one at the ballot box itself, and so Californians should revisit Proposition 8 in an election the next year or so.

And having California's laws line up with California's values will matter to people outside California as well.  As is now clear, after the Supreme Court's actions earlier this summer, the struggle over same-sex marriage rights in the United States continues to be waged in many, if not most, of the 35 or so states that do not allow same-sex marriage.  Having California in the "yes" column on same-sex marriage as a result of an election, rather than as the product of the actions of a small number of persons (a Governor and Attorney General who declined to defend, and an unelected District Court judge who issued an injunction), is important for political purposes in other states and, ultimately, for constitutional purposes when the U.S. Supreme Court returns to same-sex marriage rights-as it will almost certainly have to-in the coming years.  In Perry and United States v. Windsor (the case involving the federal Defense of Marriage Act, also known as DOMA) a month ago, the Court was able to avoid the question whether there is a national constitutional right to same-sex marriage, but it will have to answer that question directly in the next decade or so.  And there is broad agreement that the Court is keenly aware of national consensuses and national trends when it decides the content and scope of national constitutional rights (whether or not such awareness ought to be relevant).  Having California (which alone houses about 12% of all Americans) join the ranks of the same-sex marriage states through an affirmative act of its electorate will maximize its clout in these national processes.

The Logistics of Repeal:  Getting a Repeal Measure on the Ballot

Many measures that (like a repeal of Proposition 8) stand a good chance of success before the voters are nonetheless never acted upon because of the cost (often about a few million dollars) and headache of gathering the signatures required to qualify an initiative for California's statewide ballot.  But signature-gathering isn't the only way to get a measure on the ballot in California; if 2/3 of each house of the state legislature votes to put a constitutional amendment on the ballot, the amendment is offered to the electorate.  For decades this route has seemed an unlikely one, because major ballot measures are often very polarizing along party lines, and neither political party has controlled 2/3 of each house of the legislature.  But today (and barring any very unusual events, for the next year at least) Democrats can be assured of occupying 2/3 of the seats of the California Assembly and Senate.  And there may very well be a number of Republican legislators who think that California voters should be given the chance to weigh in again on same-sex marriage, since the landscape has changed so much over the last half-decade.  So there seems to be a window for the California legislature to act, to let California voters speak once again on this most important of questions.  And even though some significant money may have to be spent in the ad campaign to get such a repeal enacted, I would expect-given the salience of this topic in California over the last few years and the movement reflected in recent opinion polls-the amount of money need not be that great, and in any event would be well-spent, given the alternative: months and perhaps years of technical wrangling in the state and federal courts, leading to an outcome that cannot easily to be said to derive from the California people themselves.