On Tuesday, a liberal Ninth Circuit panel, in an opinion by arch-activist Stephen Reinhardt, ruled in SmithKline Beecham Corp. v. Abbott Laboratories that equal-protection principles prohibit discrimination based on sexual orientation in jury selection. In particular, Judge Reinhardt construed the Supreme Court’s anti-DOMA decision last term in Windsor v. United States to require that heightened scrutiny, rather than deferential rational-basis review, be applied to classifications based on sexual orientation that are alleged to violate equal-protection principles. Reinhardt’s ruling thus has obvious—and, I think it’s fair to infer, deliberately designed—implications for how the Ninth Circuit will review challenges to state marriage laws.
Reinhardt’s ruling reflects his usual wiliness and mischief. Reinhardt acknowledges that circuit precedent before Windsor applied rational-basis review to equal-protection challenges to classifications based on sexual orientation. He further acknowledges that Windsor did not hold what standard of review should generally apply to such classifications. But he determines that Windsor implicitly established that heightened scrutiny must be applied to equal-protection claims involving sexual orientation.
Reinhardt’s first dubious step is to argue that in construing Windsor he is bound by the approach that a previous Ninth Circuit panel used in its 2008 decision in Witt v. Department of the Air Force to construe what Lawrence v. Texas meant for the level of scrutiny to be used for due process claims regarding sexual orientation. That approach, Reinhardt says, requires him to analyze Windsor “‘by considering what the Court actually did’” and by looking to the same three factors that the Witt panel considered.
I’m skeptical that Witt (a ruling, incidentally, that the Obama Justice Department and then-Solicitor General Elena Kagan irresponsibly failed to seek Supreme Court review of) binds Reinhardt in the granular way he claims, and I doubt very much that he takes the same reading of circuit precedents when it doesn’t suit his purposes to do so. But the larger problem, or the bigger trick, is Reinhardt’s assumption that Windsor must be read to have implicitly adopted any general level of scrutiny for classifications based on sexual orientation.
The far better reading of what the Windsor majority “actually did,” I would submit, is that it found that DOMA “departs from [our] history and tradition of reliance on state law to define marriage” and instead “seeks to injure the very class [state law] seeks to protect.” That reasoning directed at the specifics of DOMA made it unnecessary for the Windsor majority to adopt, explicitly or implicitly, a general level of scrutiny for classifications based on sexual orientation. (As I have made clear, I think that the Windsor majority’s reasoning is badly flawed, but those flaws are irrelevant here.) Thus, Reinhardt should have ruled that the circuit precedent applying rational-basis review to equal-protection challenges to classifications based on sexual orientation remains in force.
Disclosure: Abbott Laboratories, the losing party on appeal, was represented by the law firm of Munger, Tolles & Olson, which is also representing the Ethics and Public Policy Center, the think tank I head, as an amicus in the pending HHS mandate litigation in the Supreme Court.