The Jury Is Out On Heightened Scrutiny

This week the 9th Circuit ruled that jurors cannot be excluded for being gay. Mark Joseph Stern analyzes the meaning:

In one sense, the court’s ruling was inevitable. In 1986, the Supreme Court found that attorneys couldn’t dismiss jurors based exclusively on race, holding that both defendants and jurors themselves have a right to a racism-free voir dire. Ten years later, the court extended that principle to female jurors, adding a new justification to the mix: Justice Harry Blackmun proclaimed that gender stereotypes are “rooted in and reflective of historical prejudice” and thus serve no valid purpose in jury selection. Anti-gay stereotypes are, of course, rooted in similar “historical prejudice”—a “deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals,” in the words of the 9th Circuit. The court, then, had no choice but to shield the jury box from these irrational prejudices.

Yet in another sense, Tuesday’s decision is a critical and novel development in the legal battle for gay rights. The Supreme Court protected blacks and women from prejudiced peremptory challenges because they’re both constitutionally protected classes; in other words, any law that discriminates against them is subject to heightened judicial scrutiny. But the court has never actually declared gays a protected class.

Why heightened scrutiny matters:

Judge Reinhardt called for “heightened scrutiny” in such discrimination cases – a move that shifts the burden of proof off of the plaintiffs, and potentially makes challenges to employment protection policies or state bans on same-sex marriage, for example, easier to win.

“The difference is night and day,” said James Esseks, director of the American Civil Liberties Union Lesbian Gay Bisexual Transgender & AIDS Project. Under heightened scrutiny, “any law that treats gay people differently is presumed unconstitutional; it no longer gets the benefit of the doubt.”

Noah Feldman thinks the court probably went too far:

Equality for gay people is a pressing imperative of civil liberties. But progress has been achieved so far without relying on a forced legal analogy to discrimination against blacks and women. Those forms of discrimination have structural economic roots that make them particularly persistent and pernicious. Homophobia, by contrast, is a nasty social attitude that can be eventually reduced to the point of this disappearance — and when it is gone, gay people will be truly equal. That day is coming, with the help of the courts and common sense. Heightened scrutiny can be reserved for those people who really need it.