February 14, 2014

The Ninth Circuit, in SmithKline v. Abbott Labs, Bars Lawyers From Removing Gay/Lesbian Jurors: Part Two in a Two-Part Series

Co-authored with Alan Brownstein. Cross-posted from Justia's Verdict.

In Part One of this series, we began to analyze the recent decision from the federal Ninth Circuit Court of Appeals in SmithKline Beecham Corp. v. Abbott Laboratories. The three-judge panel there held that, in light of the Supreme Court's decision last summer in United States v. Windsor (invalidating the federal Defense of Marriage Act, DOMA), all government discrimination on the basis of sexual orientation is subject to "heightened scrutiny" under the Equal Protection Clause and that, accordingly, it violates the Constitution for lawyers to use peremptory challenges to strike would-be jurors on account of the juror's sexual orientation. (For background on the Abbott case and the general topic of peremptory challenges, readers may want to consult Part One.) In particular, we discussed whether the Ninth Circuit was right to read Windsor to have signaled a decision by the Supreme Court that intermediate level scrutiny governed DOMA, and that intermediate level scrutiny should also govern all other sexual-orientation-based discrimination.

The Abbott decision is already influencing litigation involving discrimination against gays and lesbians far beyond the issue of jury selection. Earlier this week, for example, as a result of the Abbott court's reasoning and holding, the Governor and Attorney General of Nevada announced that they would no longer defend the state's ban on same-sex marriages in federal court because the arguments supporting the ban were "no longer defensible." In the space below, however, we limit our analysis to the implications of Abbott for peremptory challenges generally and sexual-orientation-based peremptory challenges in particular.

Do Peremptory Challenges Threaten to "Exclude Entire Classes of Individuals?"

As one of us has noted in earlier writings, including a column posted here, courts have been reluctant to expand the list of juror attributes on which peremptories may not be exercised in part because of a concern over slippery slopes. If peremptories cannot be used on the basis of race, and gender and (now) sexual orientation, then what about disability, age, or alienage, etc.? While Judge Reinhardt's Ninth Circuit opinion in Abbott never really addresses this question directly, he implicitly suggests that limiting prohibitions on peremptories to only those groups that benefit from "heightened scrutiny" will arrest the slippery slope. In this regard, he analogizes to and quotes heavily from the cases the Court has handed down prohibiting race- and gender-based peremptories. He says, for example, drawing on the gender-based peremptory case, J.E.B. v. Alabama ex. rel. T.B., that "striking potential jurors on the basis of their gender harms 'the litigants, the community and the individual jurors' because it reinforces stereotypes and creates an appearance that the judicial system condones the exclusion of an entire class of individuals."

From one perspective, this kind of analysis is overblown particularly in cases like J.E.B. Peremptory challenges, even if used aggressively on the basis of gender, don't necessarily threaten to remove "an entire class of individuals" from juries, because both sides of a case get the same number of peremptories. If one side is removing women (as in J.E.B.), perhaps there is reason to believe the other side would be attempting to remove men. If these opposing uses of peremptories are equally effective, then there may be no reason to believe there would be fewer women on any particular jury, let alone across all juries.

The Special Case of Numerical Minorities, and Minorities Without a Natural Majority Counterpart

There are forceful responses to this suggestion, however, that may support Justice Reinhardt even though he doesn't really address this issue (or the nitty gritty of applying heightened scrutiny at all, for that matter.) First, the neutralizing effect of the opposing use of gender-based peremptories arises, if at all, only because men and women are roughly equal in number in most jurisdictions and (somewhat less so) in the draw of the would-be jurors and replacement jurors for any particular jury. But this neutralizing or offsetting effect is not present where the bases on which peremptories are exercised involve (numerical) minority and majority groups.

A simple numerical example may help drive the point home. Suppose a jurisdiction had a demographic makeup of 75% whites and 25% racial minorities. And suppose that the initial draw of twelve would-be jurors exactly mirrors these percentages-that is, nine whites and three non-white minorities are drawn. Suppose further that each side is given three peremptory strikes, and that each side uses its peremptories to aggressively remove people based on their white or minority race, respectively. So one side (perhaps the side of a Title VII minority plaintiff) uses its three strikes to remove three white would-be jurors, and the other side uses its three strikes to remove the three people of color who were initially drawn for the jury.

So now we are left with six whites, six slots to fill, and no peremptory challenges. Those six empty slots are then filled, and again, if we are assuming a draw that reflects the demographics of the larger pool, on average only 1.5 (or 25% of six) minority jurors would be selected, and 4.5 whites (75% of six) would join the group. The overall makeup of the jury after all is said and done would be 10.5 whites and 1.5 minority folks-half the number of minority persons who were initially drawn before each side was allowed to engage in a racial peremptory war. Because this scenario could repeat itself across many or most juries, allowing each side to use race to strike prospective jurors could very likely diminish minority jury participation writ large. This systemic effect is what makes the race-based peremptory-challenge cases easy to defend for those of us who care about inclusion and fair representation of the community on juries.

And what is true for race is also true for sexual orientation, insofar as gays and lesbians are, like persons of color, numerical minorities. Indeed, peremptory challenges, if allowed on the basis of sexual orientation, may be particularly likely to reduce participation of gays and lesbians on juries, writ large, because unlike race and gender, in the sexual orientation setting, it is less natural to think about "opposing" uses of peremptories. In the racial setting, if one side excludes blacks, the other may find it advantageous to remove whites. And the same is true for removing women and men. But even if one side tries to remove one or two would-be jurors because they are gay, the other side is less likely to think to remove other jurors because they are straight.

The problem here is that equal protection doctrine both legally and intuitively doesn't always operate with the kind of symmetry that the Court has developed in race and gender discrimination cases. In race and gender cases, the Court justified its application of heightened scrutiny initially by examining past discrimination against the class of racial minorities and women. Over time, however, the Court shifted its attention in these cases away from a suspect class and toward a suspect classification. The Court's focus was no longer on whether a law disadvantaged racial minorities or women, but rather on whether the challenged law employed a racial or gender classification.

But this shift from suspect class to suspect classification seems more counterintuitive when other equal protection cases are considered. Thus we think more about discrimination against aliens than we do citizenship classifications, more about discrimination against non-marital children than marital children classifications, and more about discrimination against gays and lesbians than sexual orientation classifications. Accordingly, it would hardly be surprising to discover that lawyers might not engage in any affirmative effort to identify and remove straights from a jury, generally speaking, the way they might identify and strike men, women, blacks, whites, and gays. So if sexual-orientation peremptories are permitted, then Judge Reinhardt's concern about the exclusion of an entire group must be taken seriously.

Implementing Abbott's equal protection ban on sexual-orientation-based peremptories might not be easy in practice, however. As Kathryne Young and others point out, unlike a person's race and sex, sexual orientation isn't obvious to an outside observer, so policing sexual orientation-based discrimination may raise distinctive problems. It is often difficult enough to prove that an attorney who is striking African-Americans or women is doing so because of their race or gender when the racial or gender identity of the stricken jurors is apparent. Objections to peremptory strikes based on sexual orientation may also involve placing some would-be jurors in the uncomfortable position of having to affirm or deny their membership in an LGBT group. The Ninth Circuit began to discuss these problems, but the implementation of this new rule will require more care and attention as it is applied in practice, which is often the case after cutting-edge constitutional decisions are rendered.

The Link Connecting Jury Service and Voting

Besides practical concerns, there is a more fundamental, theoretical objection to the constitutional doctrine developed by the Supreme Court and the lower courts in this area of law. That is whether the Equal Protection Clause is the appropriate prism through which to view the problem of juror exclusion in the first place. A different set of constitutional provisions, the provisions dealing with voting and other political rights, may provide a better foundation for helping courts to decide how skeptical to be about peremptory challenges. Jury service has traditionally been tied, and analogized, to voting, and 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. Indeed, until the later Twentieth Century, voting and jury service were considered "political rights" governed not so much by the Fourteenth Amendment, but more directly by the voting rights amendments, including 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 voting rights cases dating back to the 1960s) to prevent any would-be voter from participating in any particular election unless there were to be a compelling justification for doing so. This may partly explain why some Justices (most notably Justice Breyer) have, over the last few decades, 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.

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 in the voting rights amendments) should also be protected from discrimination in jury service. So far, the Supreme Court has embraced protection for the first three kinds of groups. Prospective jurors identified by race or gender are protected under explicit equal protection holdings, and jurors identified to some extent by economic class or status have been protected more ambiguously pursuant to the Court's general supervisory powers over the federal courts, The Court has not yet ruled on whether the fourth group, defined by age, should receive comparable protection.

On this analysis, peremptories that are used to exclude gay or lesbian persons wouldn't seem to implicate the voting rights amendments (unless we shoehorned sexual orientation discrimination into sex discrimination-an analysis with persuasive force in some circumstances, but not others.) But the political-rights paradigm (as distinguished from the equal protection framework) does help to explain why one group that is protected by equal protection doctrine from state-level discrimination-aliens-have no right to avoid exclusion from juries. Indeed, through most of modern American history, non-citizens have been ineligible to serve on juries (just as they have been ineligible to vote.) California has recently considered legislation that would allow non-citizens to serve on juries (and there would be no constitutional problem with such experimentation), but it is unlikely that courts will protect their access.

From this perspective, Judge Reinhardt's reasoning correctly recognizes that while the application of heightened scrutiny under the Equal Protection Clause to laws disadvantaging a particular class is certainly relevant to the review of peremptory challenges directed at class members, it cannot be a sufficient ground for holding that these challenges are unconstitutional. The alienage cases demonstrate that a class protected by heightened scrutiny review may still be excluded from jury service. Ultimately, it is necessary to return to our earlier points about what it is, exactly, that seems so problematic about certain kinds of peremptory challenges. Peremtory challenges directed at LGBT persons are problematic because they run a particularly high risk of eliminating a distinct set of voices from juries writ large. That is the kind of harm that requires a constitutional remedy.

Will the Supreme Court Review Abbott?

It is possible that the Ninth Circuit as a whole, en banc, will decide to review the three-judge panel's decision in Abbott. What about the Supreme Court? Shortly after Abbott came down, the thoughtful New York Times legal analyst Adam Liptak suggested there might be a split between Abbott and a case from the United States Court of Appeals for the Eighth Circuit, which opined that sexual orientation is not an invalid basis for peremptories, and that such a split may be of interest to the Supreme Court. We think the Court is unlikely to exercise its discretion to review Abbott for several reasons. For starters, there really is no split with the Eighth Circuit. The language in the Eighth Circuit case suggesting that sexual orientation is a permissible basis for peremptories was dicta, since the court in that case found that the lawyer did not base the peremptory in question on sexual orientation in the first place. Moreover, the Eighth Circuit case predates Windsor, so there is no split on the precise question Judge Reinhardt's opinion answered-whether Windsor fundamentally changed the constitutional standard of review regarding discrimination against gays and lesbians. . The Eighth Circuit hasn't weighed in on that question yet, so we don't know if the two circuits really disagree.

But even if another Circuit were to disagree with Abbott in the near future, we still would not expect the Supreme Court to grant review. The Court decided Windsor inscrutably (and dodged the merits altogether in Hollingsworth v. Perry, the California Proposition 8 case) because the Court wasn't ready yet to resolve the basic same-sex marriage question, let alone whether all sexual-orientation discrimination is problematic. Taking review in Abbott would require the Court to resolve the very kinds of questions it has been trying to avoid. Last year, the Justices, as a group, seemed to want to buy some time to allow political deliberation to move forward on gay rights issues, and one year is simply not long enough for that to happen. Even though things have changed a great deal of late (with many more states embracing same-sex marriage), the times are still changing. Until the landscape begins to settle down, we would not expect the Court to reenter the picture if it can avoid doing so.

January 31, 2014

The Ninth Circuit, in SmithKline v. Abbott Labs, Bars Lawyers From Removing Gay/Lesbian Jurors

Co-authored with Alan Brownstein. Cross-posted from Justia's Verdict.

In today's column, the first in a two-part series, we begin to analyze and assess an important decision handed down last week by the United States Court of Appeals for the Ninth Circuit concerning discrimination against would-be jurors who happen to be gay or lesbian. In SmithKline Beecham Corp. v. Abbott Laboratories, a unanimous three-judge panel ruled that it violates the Fourteenth Amendment's Equal Protection Clause for a lawyer to "strike" (that is, remove) individuals from a jury panel on account of their sexual orientation. As one of us explained more fully in an earlier column previewing the Ninth Circuit oral argument last fall, the antitrust lawsuit involved HIV medications, and an attorney for one of the companies (Abbott) exercised a so-called "peremptory strike" (also known as a "peremptory challenge")-effectively removing an individual 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 an equal number of would-be jurors for no supportable reason, solely because of a lawyer's hunches or intuitions about how a particular person might behave and decide as a juror.

In holding that judicial acceptance of Abbott's peremptory challenge would violate the Constitution, the Ninth Circuit opinion, authored by Judge Reinhardt, made a number of analytic moves. First, the panel had to determine whether an earlier three-judge Ninth Circuit panel ruling from 2008, Witt v. Department of the Air Force-which held that governmental actions discriminating on the basis of sexual orientation need only satisfy the lowest, most deferential, "rational basis" standard in order to be upheld under the Equal Protection Clause-is still good law. If Witt's teaching that sexual orientation discrimination is not, as a general matter, subject to any kind of beefed-up constitutional scrutiny is still good law, it would be binding on the SmithKline panel judges, and the panel would have been required to come out the other way in SmithKline, since the Supreme Court has stated that peremptories may be used to remove individuals who are members of a class that is protected only by rational-basis review.

The SmithKline panel instead decided that Witt's rational-basis-review approach is inconsistent with-and thus no longer binding because of-the Supreme Court's ruling in United States v. Windsor, the case decided last summer that struck down the Defense of Marriage Act (DOMA), the federal law denying recognition to same-sex marriages. The Ninth Circuit found Witt to be inconsistent with Windsor because the Court in Windsor, whether the Justices admitted it or not, effectively applied "heightened scrutiny" (rather than rational-basis review) in holding that the DOMA violated equal protection guarantees. The Ninth Circuit's reading of Windsor was crucial to getting around Witt. In this vein, the Ninth Circuit had to (and did) decide not only that Windsor applied heightened scrutiny to DOMA, but also that Windsor is not limited by the facts or context of that case, and instead stands for the legal proposition that heightened scrutiny now applies to all government actions that discriminate on the basis of sexual orientation. Based on that conclusion, the Ninth Circuit went on to determine the result of heightened-scrutiny review of sexual orientation-based peremptory challenges under the Fourteenth Amendment.

In the space below, we focus on the beginning of Judge Reinhardt's analysis and examine the Ninth Circuit's initial moves-the notion that subsequent Supreme Court authority could, by implication, reverse earlier clear Ninth Circuit precedent, the determination that Windsor is best read as applying heightened scrutiny to DOMA, and the contention that Windsor effectively requires heightened scrutiny to be applied to all government discrimination on the basis of sexual orientation. In Part Two of this series, we examine some of the later moves that the Ninth Circuit made-including the application of heightened scrutiny in the peremptory challenge context-and also explore where the case may go from here.

Was the Ninth Circuit Right That Supreme Court Authority Can Implicitly Erase Earlier Circuit Precedent?

No one would deny that a Supreme Court ruling that directly contradicts a Circuit Court opinion, whether the Circuit opinion is recent or old, would effectively eliminate the precedential authority of the lower court's ruling. But the issue in SmithKline is a little different. The Ninth Circuit conceded that Windsor (the recent Supreme Court case) doesn't directly contradict Witt (the older Ninth Circuit ruling), but determined instead that the reasoning of Windsor is in tension with Witt-that the two cases seem to reflect different mindsets-so that if we had to predict how today's Supreme Court would decide Witt, we might bet that the Court would reach a result that is different from that reached by the Ninth Circuit in Witt.

One possible problem with the Ninth Circuit's getting around Witt by noting some analytic tension between it and Windsor's reasoning is the Supreme Court's own admonition that lower courts should not "underrule" older cases based on predictions about the direction in which the Supreme Court is headed. As the Court put the point in 1989 in Rodriguez de Quijas v. Shearson/American Express, Inc.: "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [lower courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."

One might think that this principle prevents the Ninth Circuit from ignoring Witt in favor of the new direction that is reflected by Windsor. But, in fact, the Shearson/American Express principle may have no application in this setting, because Witt (the older case that is arguably on point) is not a Supreme Court case, but rather simply a prior three-judge panel case from the Ninth Circuit. It is not obvious why three-judge panels of a Circuit court should bind subsequent three-judge panels of the same court in any event. The best answer is probably the need for some stability so that persons within a Circuit can know "what the law is." But these intra-court stability concerns are less weighty than the reasons that explain why Circuit courts have to obey older rulings from a superior court-the Supreme Court (or an en banc panel of the Circuit). "Vertical" hierarchy and obedience to precedents of higher courts implicate different concerns than "horizontal" stare decisis (whereby a court pays deference, even strict deference, to its own rulings). So the Ninth Circuit was correct to carefully examine Windsor to assess the level of tension between it and Witt. (If the Supreme Court had, in some prior case, clearly ruled that sexual orientation discrimination implicates only minimum-rationality review and not heightened review, then the Shearson/American Express principle might apply here. But the clear holding in Witt-that minimum rationality review applies-came from a three-judge Ninth Circuit panel, not the Supreme Court.)

Did the Court Properly Read Windsor as a Case Employing Heightened Scrutiny?

Judge Reinhardt concedes, as he must, that the Windsor opinion does not explicitly state the level of scrutiny that the Court is employing to strike down DOMA. Accordingly, he looks to three factors that Ninth Circuit precedent requires him to consider in order to determine whether the level of scrutiny utilized in Windsor was, in fact, more rigorous than the highly deferential, rational-basis standard of review. The three factors are: (1) whether the Windsor opinion considered post-hoc rationalizations for DOMA-hypothetical purposes that might conceivably justify the law-or instead focused only on the actual goals Congress relied upon in enacting the statute; (2) whether the Windsor opinion required that there be a "legitimate" state interest to "justify" the effect of the law; and (3) whether the cases that were cited in Windsor themselves applied rational-basis review or heightened scrutiny.

With regard to the first factor, Judge Reinhardt correctly concludes that Justice Kennedy's opinion in Windsor examines the actual purpose of DOMA in considerable detail, and that an emphasis on the legislature's actual purpose strongly suggests that some form of heightened scrutiny is being applied.

An analysis of the second factor-the requirement that there must be a legitimate state interest to justify the challenged law-is more complicated, however, because, in some circumstances, we think the insistence on "legitimate" purposes for upholding a law is consistent with an application of rational basis review. And in other contexts, doubts about the legitimacy of the state's purpose may undermine the validity of the law, but they do so outside of the framework of rational basis review, intermediate level scrutiny, or strict scrutiny. For these reasons, the use of the word "legitimate" is not a signal of heightened scrutiny.

When courts focus on the state's interest in equal protection cases, what differentiates rational basis review from intermediate-level scrutiny or strict scrutiny, as a formal doctrinal matter, is that the latter two standards require, respectively, an "important" or "compelling" state interest. Conversely, a modest or even marginal state interest can satisfy rational basis review. But under all three standards, the state's interest must be "legitimate." Suppose, for example, that Congress had adopted DOMA for the express purpose of complying with what Congress understood to be divine law condemning same-sex marriage. Obedience to religious requirements is not a legitimate state purpose. Even under rational basis review, a court cannot use this purpose as a post-hoc rationalization to sustain a law.

Another state interest that lacks legitimacy, and which is relied on in cases cited in Windsor, such as Texas v. Lawrence and Moreno v. Department of Agriculture, is the goal of degrading or demeaning a group because of bare animus toward its members. The nature and scope of this characterization of a purpose as "illegitimate" remain unclear. Certainly, the goal of demeaning and punishing drug dealers would not undermine the constitutionality of statutes criminalizing drug trafficking.

Moreover, and more directly relevant here, the conclusion that a law serves an illegitimate state interest does not trigger the application of heightened scrutiny so much as it does an automatic invalidation of the law without further review. Heightened scrutiny is often described as mechanism that enables courts to flesh out impermissible state purposes. If a court determines at the outset that a law serves illegitimate purposes through an independent analysis, there is no reason to "flesh out" what the court already knows.

Indeed, if we examine this section of Judge Reinhardt's opinion more closely, it appears that his emphasis on an inquiry into the legitimacy of a law does not really pertain to questions about whether a law serves impermissible purposes. Instead, Judge Reinhardt seems primarily concerned that the Windsor opinion discussed the harm caused by DOMA and the government's need to justify such consequences if the law was to withstand the equal protection challenge directed against it. Reinhardt argues that this kind of implicit balancing of interests suggests more rigorous scrutiny than the highly deferential rational basis standard of review.

Indeed, it does. But does this necessarily mean that the Windsor opinion was applying heightened scrutiny to DOMA? As Judge Reinhardt acknowledges in his discussion of the third factor-an examination of the cases cited in Windsor to determine whether or not they themselves employed heightened scrutiny-sometimes the Supreme Court has applied rational basis review to a law, but the scrutiny it employed was more rigorous than the conventional leniency associated with a rational basis analysis. Moreno, dealing with discrimination against "hippie" households, was one such case. Romer v. Evans, involving discrimination against gays and lesbians, also cited in Windsor, is another, as is Cleburne v. Cleburne Living Center, Inc., (a case that wasn't cited in Windsor) involving discrimination against the mentally retarded. One can certainly argue with some justification that the analysis in these hybrid rational basis cases arguably parallels the analysis in Windsor.

But it is less clear to us than it is to Judge Reinhardt that these "rational basis with teeth" cases should be characterized as applying heightened scrutiny, such that other laws burdening the same groups at issue in those cases in other settings would be subjected to rigorous review. As a general matter, we see no evidence that Cleburne or Moreno has changed the level of review applied to laws discriminating against the mentally retarded or "hippie" groups. True, these not-so-deferential rational-basis cases cannot easily be incorporated into the multi-tier system of review that the Court utilizes in equal protection cases. But at least for now, until the Supreme Court tells us otherwise, they are rational-basis cases.

As Judge Reinhardt acknowledges (and as we noted earlier), the Supreme Court has stated that "'(p)arties may . . . exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to 'rational basis' review.'" Accordingly, one may argue with considerable force that as long the Court considers cases like Romer, Moreno, and Cleburne to have been decided under rational basis review, lower courts adjudicating equal protection claims against the use of peremptory challenges to strike gays, hippies, and the disabled from juries have no discretion to invalidate these jury selection decisions.

Even if Windsor Applied Heightened Scrutiny, Did It Do So Under Equal Protection Alone?

Finally, Judge Reinhardt's opinion is as notable for what it omits as for what it says. There is virtually no mention in SmithKline of the federalism argument that makes up so much of Justice Kennedy's opinion in Windsor. Clearly, Justice Kennedy's majority writing in Windsor emphasizes the fact that the institution of marriage has been, and should be, a subject of state, rather than federal regulation. What is less clear in Windsor, however, is how this federalism analysis fits together with Justice Kennedy's equal protection arguments. The uncertainty about precisely how the structural (federalism) and rights-based (equal protection) arguments fit together to support the Court's holding in Windsor may have contributed to Judge Reinhardt's decision to ignore the federalism aspect of Windsor altogether, and discuss the equal protection analysis in isolation.

Yet we think there may be a meaningful way to integrate the federalism and rights-based arguments in Windsor. There is sometimes a structural dimension to equal protection doctrine. In equal protection cases involving discrimination against non-citizens, for example, the Court sharply distinguishes between the level of review applicable to state laws discriminating against non-citizens, and the standard applicable to federal laws involving similar discrimination. Because the power to regulate immigration and naturalization is vested in the national government, state laws discriminating against non-citizens are more problematic and suspicious than discriminatory federal legislation. Accordingly, state laws discriminating against non-citizens receive much more rigorous review. Even if the federal government can permissibly regulate where resident aliens may live in the United States, a state has no business burdening their mobility.

A similar but mirror image analysis arguably applies in Windsor. Because marriage is quintessentially a matter of state sovereignty and control, it is federal laws discriminating against couples a state deems to be married that seem suspicious and problematic and warrant at least rational basis with teeth review. Under this analysis, however, it is harder to read Windsor as holding that all laws discriminating against gays and lesbians should receive heightened scrutiny, where there is no structural basis for distinguishing between the exercise of federal or state sovereignty in the government's actions.

In Part Two of this series, which will appear on this site on February 14, we will continue our analysis of Judge Reinhardt's approach, and also discuss the likelihood that the Supreme Court would be interested in this case.

May 15, 2013

Expanding eligibility for jurors would democratize jury room

Allowing noncitizens who are legal immigrants to serve on juries is a desirable reform in a society devoted to judgment by one's peers and juries that represent a cross-section of the community. Assembly Bill 1401, passed overwhelmingly by the California Assembly, would do just this, permitting legal immigrants, as well as U.S. citizens, to serve on juries.

The Assembly Committee on the Judiciary highlighted the laudable goals behind the expansion of eligibility for jury service: "jury service is understood to be a democratizing force and a societal obligation."

Importantly, AB 1401 would extend jury service eligibility only to "lawful permanent residents," a legal term of art referring to immigrants lawfully admitted to the United States who under the U.S. immigration laws generally possess the right to remain indefinitely, if not permanently, in the United States. The bill would not allow temporary visitors or undocumented immigrants to serve on juries.

Nothing in the state or federal constitutions prohibits noncitizen service on juries, or, for that matter, being lawyers or even judges. Nor, despite the cries of opponents, are noncitizen jurors unprecedented. Indeed, there was a long tradition in England, from where the United States imported its right to trial by jury, of allowing noncitizens to serve on juries.

For close to 700 years, the English justice system permitted the jury de medietate linguae ("jury of the half tongue"), also known as mixed juries. To ensure fair treatment of a minority by the majority, noncitizen litigants had the right to request that half of the jury consist of noncitizens. English colonists brought the mixed jury to America. Trial by mixed juries for a time was the practice in the colonies and, after the revolution, the United States.

The legally enshrined ideal, and constitutional requirement, is for American juries to be pulled from a cross-section of the community. Immigrants unquestionably are part of communities throughout California. Some counties, including but not limited to Los Angeles (18.6 percent), Orange (15.3 percent), and San Francisco (14.7 percent), have large immigrant populations. These residents pay taxes and live and work in the community and serve in the military; many have children who are United States citizens. Immigrants are subject to the laws just like U.S. citizens, but play no role in resolving legal disputes.

Similar to the revolutionary battle cry of "no taxation without representation," unrepresentative juries render judgments that are less legitimate than more representative juries in the eyes of minorities. History teaches that the "all-white jury" convicting an African American defendant is presumptively illegitimate. Historically, minorities and women were barred from jury service, which today is condemned and discriminatory and wrong. One can only wonder whether some of the opposition to the expansion of jury eligibility is due to racial anxieties and anti-immigrant sentiments that too long have been part of this country's fabric.

Nor does AB 1401 eliminate any of the other eligibility requirements for jury service, requirements that help ensure that jurors embrace community values. English language proficiency, for example, remains a requirement to serve on a jury. It alone is likely to result in immigrant jurors who are the most assimilated of all immigrants into American culture and values. In addition, all jurors must be domiciled in California and residents of the county in which they would serve, again contributing to the likelihood that they represent the values of the community. Moreover, a felony conviction disqualifies any person - immigrant and U.S. citizen alike - from jury service.

Opponents of AB 1401 assert that U.S. citizenship is somehow the equivalent of knowledge of the American legal system or of embracing American values. There is no basis for this assumption. In fact, passing a test about civics or the law or the Constitution is not required of any citizen as a prerequisite for jury service. Some citizens have basic knowledge in these areas, while some don't. Undoubtedly the same will be true of noncitizens serving as jurors. Noncitizens work in this country, abide by its laws, and have by their actions shown appreciation of the freedom and liberty that is uniquely American. There is no reason to assume that they are less knowledgeable about or less committed to the system than United States citizens.

There is no doubt whatsoever that it is constitutional for the state to have noncitizens serve on juries. It is highly desirable because expanding juror eligibility to lawful permanent residents would make juries look more like the communities for which they serve - and more legitimate to immigrant communities and more true to American democratic ideals.

Co-authored with Dean Erwin Chemerinsky of UC Irvine School of Law. This op-ed is reprinted from The Sacramento Bee.