Smithkline Beecham Corporation v. Abbott Laboratorie

Filing 24

Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by Lambda Legal and Twelve Other Legal and Public Interest Organizations. Date of service: 03/28/2012. [8120121] [11-17357, 11-17373] (SDD)

Smithkline Beecham Corporation v. Abbott Laboratorie

Doc. 24

Nos. 2011-17357, 2011-17373
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
____________________________________
SMITHKLINE BEECHAM CORPORATION, DBA GLAXOSMITHKLINE,
PLAINTIFF-APPELLEE/CROSS-APPELLANT,
v.
ABBOTT LABORATORIES,
DEFENDANTS-APPELLANT/CROSS-APPELLEE.
____________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
Case No. 4:07-CV-05702 (Hon. Claudia Wilken)
___________________________________
BRIEF OF AMICI CURIAE LAMBDA LEGAL AND TWELVE OTHER LEGAL AND
PUBLIC INTEREST ORGANIZATIONS IN SUPPORT OF PLAINTIFF-APPELLEE
SMITHKLINE BEECHAM CORPORATION DBA GLAXOSMITHKLINE AND IN
SUPPORT OF REVERSAL OF THE JUDGMENT BELOW
___________________________________
SHELBI D. DAY
TARA L. BORELLI
JON W. DAVIDSON
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
3325 Wilshire Blvd., Suite 1300
Los Angeles, California 90010
[phone]
[e-mail]
[e-mail]
[e-mail]
Counsel for Amici Curiae

Dockets.Justia.com

CORPORATE DISCLOSURE STATEMENT
None of the amici has a parent corporation and no corporation owns 10% or
more of any of amici’s stock.

i

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ......................................................... i

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES ................................................................................... iv
INTEREST OF AMICI CURIAE ...............................................................................1
INTRODUCTION AND SUMMARY OF THE ARGUMENT ...............................1
ARGUMENT .............................................................................................................4
I.

A PEREMPTORY CHALLENGE BASED ON A PROSPECTIVE
JUROR’S SEXUAL ORIENTATION VIOLATES THE EQUAL
PROTECTION CLAUSE. ...............................................................................4
A.

As Established in Batson v. Kentucky and Its Progeny, Peremptory
Challenges May Not Be Based on Characteristics That Give Rise To
Heightened Judicial Scrutiny ................................................................5

B.

Pursuant to Batson v. Kentucky and Its Progeny, Peremptory Strikes
Based on Sexual Orientation Are Impermissible Because Such
Classifications Warrant Heightened Judicial Scrutiny..........................9
1.

Lesbians and Gay Men Have Experienced a History of
Discrimination ...........................................................................14

2.

Sexual Orientation is Unrelated to the Ability to Contribute to
Society .......................................................................................16

3.

Lesbians and Gay Men Remain a Politically Vulnerable
Minority ....................................................................................17

4.

Sexual Orientation Is a Defining and Immutable
Characteristic .............................................................................21

ii

C.

II.

Batson v. Kentucky Also Bars Peremptory Strikes Against Lesbians
and Gay Men Because Such Strikes Discriminate Based on Sex and
on the Manner in Which Individuals Exercise Their Constitutionally
Protected Liberty Interest ....................................................................23

PEREMPTORY CHALLENGES BASED ON SEXUAL ORIENTATION
HARM THE EXCLUDED JUROR AND THE JUDICIAL SYSTEM........26

CONCLUSION ........................................................................................................30
CERTIFICATE OF COMPLIANCE .......................................................................32
APPENDIX A ..........................................................................................................33
CERTIFICATE OF SERVICE ................................................................................38

iii

TABLE OF AUTHORITIES
CASES
Baehr v. Lewin
852 P.2d 44 (Haw. 1993) .........................................................................................24
Batson v. Kentucky
476 U.S. 79 (1986) ........................................................................................... passim
Ben-Shalmon v. Marsh
881 F.2d 454 (7th Cir. 1989) ...................................................................................15
Bowen v. Gilliard
483 U.S. 587 (1987) .......................................................................................... 12, 13
Bowers v. Hardwick
478 U.S. 186 (1986) ............................................................................................ 3, 11
Bowles v. Sec’y for the Dept. of Corrections
608 F.3d 1313 (11th Cir. 2010) .................................................................................7
Christian Legal Soc’y v. Martinez
130 S. Ct. 2971 (2010) ...................................................................................... 12, 26
City of Cleburne, Texas v. Cleburne Living Center
473 U.S. 432 (1985) ......................................................................................... passim
Davis v. Minnesota
511 U.S. 1115 (1994) .................................................................................................7
Diaz v. Brewer
656 F.3d 1008 (9th Cir. 2011) .................................................................................11
Edmonson v. Leesville Concrete Co., Inc.
500 U.S. 614 (1991) ...................................................................................... 6, 26, 27

iv

Frontiero v. Richardson
411 U.S. 677 (1973) .................................................................................... 13, 18, 19
Golinski v. Office of Pers. Mgmt.
No. 10-00257, 2012 U.S. Dist. LEXIS 22071 (N.D. Cal. Feb. 22, 2012). ...... passim
Hernandez-Montiel v. INS
225 F.3d 1084 (9th Cir. 2000) .................................................................................21
Higgins v. New Balance Athletic Shoe, Inc.
194 F.3d 252 (1st Cir. 1999) ....................................................................................25
High Tech Gays v. Def. Indus. Sec. Clearance Office
895 F.2d 563 (9th Cir. 1990) ........................................................................... passim
High Tech Gays v. Def. Indus. Sec. Clearance Office
668 F. Supp. 1361 (N.D. Cal. 1987) ........................................................................16

In re Levenson
560 F.3d 1145 (9th Cir. EDR Op. 2009) .................................................................24
In re Marriage Cases
43 Cal. 4th 757 (Cal. 2008) ......................................................................... 14, 18, 24
J.E.B. v. Alabama ex rel. T.B.
511 U.S. 127 (1994) ......................................................................................... passim
Johnson v. Campbell
92 F.3d 951 (9th Cir. 1996) .......................................................................................2
Kerrigan v. Comm’r of Pub. Health
289 Conn. 135 (Conn. 2008)....................................................................................14
Korematsu v. United States
323 U.S. 214 (1944) .................................................................................................18
Lawrence v. Texas
539 U.S. 558 (2003) ................................................................................ 3, 11, 17, 25

v

Lyng v. Castillo
477 U.S. 635 (1986) .................................................................................................13
Massachusetts Bd. of Ret. v. Murgia
427 U.S. 307 (1976) .................................................................................... 12, 13, 26
Miller v. Gammie
335 F.3d 889 (9th Cir. 2003) .............................................................................. 3, 12
Nichols v. Azteca Restaurant Enterprises, Inc.
256 F.3d 864 (9th Cir. 2001) ...................................................................................24
Nyquist v. Mauclet
432 U.S. 1 (1977) .....................................................................................................13
People v. Garcia
77 Cal. App. 4th 1269 (Cal. Ct. App. 2000) ............................................................29
Perry v. Brown
No. 10-16696, 11-16577, U.S. App. LEXIS 2328 (9th Cir. Feb. 7, 2012) .............11
Perry v. Proposition 8 Official Proponents
587 F.3d 947 (9th Cir. 2009) ...................................................................................14
Perry v. Schwarzenegger
704 F. Supp. 2d. 921 (N.D. Cal. 2010) ....................................................... 14, 22, 24
Peters v. Kiff
407 U.S. 493 (1972) .......................................................................................... 29, 30
Plyler v. Doe
457 U.S. 202 (1982) .................................................................................................22
Powers v. Ohio
499 U.S. 400 (1991) ............................................................................................ 6, 28
Price Waterhouse v. Hopkins
490 U.S. 228 (1989) .................................................................................................24

vi

Romer v. Evans
517 U.S. 620 (1996) .................................................................................... 10, 11, 17
Rowland v. Mad River Local Sch. Dist.
470 U.S. 1009 (1985) ...............................................................................................15
Strauder v. West Virginia
100 U.S. 303 (1880) ...................................................................................................9
Taylor v. Louisiana
419 U.S. 522 (1975) .......................................................................................... 29, 30
Thomas v. Gonzales
409 F.3d 1177 (9th Cir. 2005) .................................................................................21
United States v. Alanis
335 F.3d 965 (9th Cir. 2008) ..................................................................................23
United States v. Carolene Prods. Co.
304 U.S. 144 (1938) .................................................................................................10
United States v. Omoruyi
7 F.3d 880 (9th Cir. 1993) .......................................................................................23
United States v. Osazuwa
Case No. 10-50109, 2011 U.S. App. LEXIS 16813 (9th Cir. 2011) .........................2
United States v. Santiago-Martinez
58 F.3d 422 (9th Cir. 1995) ...................................................................................2, 7
United States v. Virginia
518 U.S. 515 (1996) .......................................................................................... 12, 13
United States v. Watson
483 F.3d 828 (D.C. Cir. 2007) ...................................................................................7
Varnum v. Brien
763 N.W.2d 862 (Iowa 2009) ..................................................................................14

vii

Watkins v. United States Army
875 F.2d 699 (9th Cir. 1989) ........................................................................... passim
Witt v. Dep’t of Air Force
527 F.3d 806 (9th Cir. 2008) ............................................................................ 12, 25

STATUTES
Defense of Marriage Act (“DOMA”)
Pub. L. No. 104-199, §3, 110 Stat. 2419 (1996) .....................................................20

OTHER AUTHORITIES

American Psychological Association, Just the Facts About Sexual Orientation &
Youth: A Primer for Principals, Educators and School Personnel (2008)
available at http://www.apa.org/pi/lgbt/resources/just-the-facts.pdf .................22
Courtney A. Powers, Finding LGBTs a Suspect Class: Assessing the Political
Power of LGBTs as a Basis for the Court’s Application of Heightened Scrutiny,
17 Duke J. Gender L. & Pol’y 385, 395 (2010) .................................................19
Defendant’s Brief in Opposition to Motion to Dismiss filed in Golinski v. United
States Office of Pers. Mgmt., (Case No. 10-00257, N.D. Cal. 2012)
available at http://www.lambdalegal.org/in-court/legal-docs/golinski_us_
20110701_defendants-brief-in-opposition-to-motion-to-dismiss ......................15

Gary J. Gates, The Williams Institute, How many people are lesbian, gay, bisexual,
and transgender? (April 2011)
available at http://www3.law.ucla.edu/ williamsinstitute/pdf/How-manypeople-are-LGBT-Final.pdf ................................................................................19
Human Rights Campaign, Statewide Marriage Prohibitions (2009)
available at http://www.hrc.org/documents/marriage_prohibitions_2009.pdf ..20

John J. Neal, Striking Batson Gold at the End of the Rainbow?: Revisiting Batson
v. Kentucky in Light of Romer v. Evans and Lawrence v. Texas
91 Iowa L. Rev. 1091, 1095 (March 2006) ..........................................................5

viii

Kerry Eleveld, Cicilline Becomes Fourth Gay Rep, Advocate.com (Nov. 2, 2010),
available at www.advocate.com/News/Daily_News/ 2010/11/02/ Gay_Mayor_
Cicilline_Elected_to_Congress...........................................................................19
Letter from Attorney General to Congress on Litigation Involving the Defense of
Marriage Act available at http://www.justice.gov/opa/pr/2011/February/11-ag223.html ...................................................................................................... passim
Lisa Keen, Gay Federal Appeals Nominee: 11 Months and Still Waiting for
Hearing, Keen News Service (Mar. 7, 2011)
available at http://www.keennews service.com/2011/03/07/gay-federal-appealsnominee-11-months-and-still-waiting-for-hearing .............................................19

Servicemembers Legal Defense Network, “About Don’t Ask, Don’t Tell”,
available at http://www.sldn.org/pages/about-dadt1..........................................20
Todd Brower, Twelve Angry – And Sometimes Alienated – Men: The Experiences
and Treatment of Lesbians and Gay Men During Jury Service
59 Drake L. Rev. 669, 674 (Spring 2011) ................................................... 27, 28

ix

INTEREST OF AMICI CURIAE1
Amici are a coalition of twelve public interest legal organizations and
advocacy groups committed to protecting the equal rights of all women and
minorities in the United States, including African Americans, Latinos, Asian
Americans and Pacific Islanders, women, and lesbian, gay, bisexual, and
transgender individuals.2 Amici submit this brief to urge the Court to ensure that
the Constitution’s guarantee of equal protection is fully realized in the
administration of justice by applying Batson v. Kentucky, 476 U.S. 79 (1986), and
its progeny to prohibit peremptory challenges based on a prospective juror’s sexual
orientation.
INTRODUCTION AND SUMMARY OF ARGUMENT
Lesbians and gay men have suffered a long history of discrimination in both
the public and private spheres. As with other groups targeted with invidious
discrimination, far too often discrimination against lesbians and gay men has found
its way into the courtroom, denying them equal access to the courts and an equal
opportunity to participate in civic life. This is apparent in cases like the instant

1

The parties have consented to the filing of this brief. No party’s counsel authored
this brief; no party or party’s counsel contributed money to fund this brief; and no
person – other than amici curiae – contributed money to fund preparation and
submission of this brief.
2

A brief description of each amicus is included herein as Appendix A.
1

case where a prospective juror was excluded from the venire solely because of his
sexual orientation. Such invidious discrimination is an affront to the core
principles of equal protection enunciated in well-established Supreme Court
precedent. See, e.g. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).
In Batson v. Kentucky, the U.S. Supreme Court held that the Equal
Protection Clause precludes the use of peremptory challenges to strike prospective
jurors because of their race. 476 U.S. 79 (1986). The Court has explained that,
although no one has an absolute right to sit on the jury, once summoned for jury
service prospective jurors “have an equal protection right to jury selection
procedures that are free from state-sponsored group stereotypes rooted in, and
reflective of, historical prejudice.” J.E.B., 511 U.S. at 128, 129. Since then,
Batson has evolved to prohibit peremptory challenges based on any classification
that warrants heightened judicial scrutiny. See J.E.B., 511 U.S. at 128-129
(collecting cases); United States v. Santiago-Martinez, 58 F.3d 422, 423 (9th Cir.
1995). Although the Ninth Circuit has twice assumed without deciding that Batson
applies to sexual orientation-based peremptory challenges, the question remains an
open one. See United States v. Osazuwa, Case No. 10-50109, 2011 U.S. App.
LEXIS 16813 (9th Cir. 2011), cert. denied, 2012 U.S. LEXIS 1329 (2012);
Johnson v. Campbell, 92 F.3d 951, 953 (9th Cir. 1996).

2

The present case requires that the Court at last resolve the issue. Amici urge
the Court to hold that, under the Supreme Court’s logic and reasoning in Batson
and its progeny, peremptory challenges based on sexual orientation violate the
constitutional guarantee of equal protection. As Plaintiff-Appellee
GlaxoSmithKline (GSK) asserts in its initial brief, Dkt. 20-1, there are three
different bases under equal protection analysis that warrant extending Batson to
sexual orientation. While amici agree with all three arguments, this brief
principally focuses on one: under traditional equal protection analysis,
classifications based on sexual orientation should be considered suspect or quasisuspect and be provided heightened judicial scrutiny.
The level of scrutiny required for classifications based on sexual orientation
is currently an open question in the Ninth Circuit. The Court’s decision in High
Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990)
(finding that rational basis review applies to classifications based on sexual
orientation), was premised upon then-controlling precedent in Bowers v. Hardwick,
478 U.S. 186 (1986), which was subsequently overruled by Lawrence v. Texas,
539 U.S. 558, 575 (2003).3 As such, this Court should evaluate the level of review

3

See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (where
an intervening decision of a higher court is clearly irreconcilable with a Ninth
Circuit decision, lower courts “should consider themselves bound by the
intervening higher authority and reject the prior opinion of [the Ninth Circuit] as
3

for sexual orientation classifications under the traditional analysis for determining
whether a classification is suspect. When this is done, it is clear that
discrimination based on sexual orientation must be subjected to heightened judicial
review. Both the Executive Branch and at least one district court within this
Circuit have recently agreed.4
Any result other than applying Batson to preclude peremptory strikes based
on a prospective juror’s sexual orientation would be in direct contravention of core
equal protection principles and serve only to perpetuate discrimination against
lesbians and gay men. The discrimination at issue here is particularly harmful,
because it reinforces historical invidious discrimination within the court system
and undermines the integrity of the judicial system.
ARGUMENT
I. A PEREMPTORY CHALLENGE BASED ON A PROSPECTIVE
JUROR’S SEXUAL ORIENTATION VIOLATES THE EQUAL
PROTECTION CLAUSE.

having been effectively overruled”).
4

Letter from Attorney General to Congress on Litigation Involving the Defense of
Marriage Act, available at http://www.justice.gov/opa/pr/2011/February/11-ag223.html (hereinafter “Attorney General Letter to Congress”); Golinski v. Office of
Pers. Mgmt., No. 10-00257, 2012 U.S. Dist. LEXIS 22071 (N.D. Cal. Feb. 22,
2012).

4

A. As Established in Batson v. Kentucky and Its Progeny, Peremptory
Challenges May Not Be Based on Characteristics That Give Rise to
Heightened Judicial Scrutiny.
Peremptory challenges have a long history in our judicial system, dating
back to English common law.5 The purpose of a peremptory challenge is to allow
attorneys to remove a prospective juror from the venire without cause.6 The
Supreme Court has recognized the utility of the peremptory challenge, but has
made clear that it is a privilege, not a right, and its reach is not without limits –
peremptory challenges must be exercised within the constraints of the Equal
Protection Clause.
In Batson, the Supreme Court held that the Equal Protection Clause prohibits
the use of peremptory challenges to strike potential jurors based solely on the
juror’s race. 476 U.S. at 89. The Court acknowledged that peremptory challenges
may generally be used “for any reason at all” and without explanation, but the
Court concluded that voir dire – like all government action – is “subject to the
commands of the Equal Protection Clause.” Id. As such, the Constitution will not
tolerate racial discrimination simply because it is cloaked as a peremptory

5

John J. Neal, Striking Batson Gold at the End of the Rainbow?: Revisiting Batson
v. Kentucky in Light of Romer v. Evans and Lawrence v. Texas, 91 Iowa L. Rev.
1091, 1095 (March 2006).
6

Neal, supra note 5, at 1093.

5

challenge. As with any race-based classification by the government, the Court
explained, the judiciary must closely scrutinize peremptory challenges that appear
to be based solely on race to ensure against discrimination.7 Batson, 476 U.S. at
93-94.
Since Batson, the Court has repeatedly reaffirmed its “commitment to jury
selection procedures that are fair and nondiscriminatory.” J.E.B., 511 U.S. at 128
(collecting cases). The Court has applied Batson to both criminal and civil
proceedings.8 Powers v. Ohio, 499 U.S. 400 (1991); Edmonson, 500 U.S. 614
(1991). And, in J.E.B. v. Alabama ex rel T.B., the Court extended Batson beyond
race-based peremptory challenges to prohibit peremptory challenges used to
remove prospective jurors because of their gender. J.E.B., 511 U.S. at 129, 136-37

7

In Batson, the Supreme Court established a three part test for evaluating a claim
that counsel made a peremptory strike in a manner that violated the Equal
Protection Clause. 476 U.S. at 96-98. First, the party raising the objection to the
peremptory challenge must make a prima facie showing that the opposing party
exercised the strike for a discriminatory purpose. If the requisite showing has been
made, the burden then shifts to the party exercising the peremptory challenge to
articulate a neutral, nondiscriminatory reason for striking the juror. Finally, the
court must then determine whether the objecting party has met her burden of
proving purposeful discrimination given the totality of the circumstances. Id.
8

In civil proceedings, the parties become government actors when exercising
peremptory challenges – thereby invoking protections under the U.S. Constitution.
Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 616-617 (1991)
(explaining that, where the underlying case arises in the United States District
Court, the equal protection component of the Fifth Amendment’s Due Process
Clause applies; where it arises in state court, the equal protection provision of the
Fourteenth Amendment applies).
6

(applying heightened scrutiny and finding that “gender-based peremptory
challenges are not substantially related to an important government objective”).
The circuit courts, including the Ninth Circuit, have interpreted J.E.B. as extending
Batson to prohibit peremptory challenges of a prospective juror based on any
classification entitled to heightened scrutiny under equal protection analysis. See,
e.g., Bowles v. Sec’y for the Dept. of Corrections, 608 F.3d 1313, 1316 (11th Cir.
2010), cert. denied, 131 U.S. S.Ct. 652 (2010) (the Supreme Court “has drawn the
line of application [of Batson] at distinctive groups entitled to heightened
scrutiny”); Santiago-Martinez, 58 F.3d at 423 (declining to apply Batson to
peremptory challenges of obese jurors because obesity is not a classification
subject to heightened scrutiny); United States v. Watson, 483 F.3d 828, 831 (D.C.
Cir. 2007) (“A member of a class entitled to heightened scrutiny … receives
protection under the rule established in Batson.”). See also Davis v. Minnesota,
511 U.S. 1115, 1117 (1994) (Thomas, J. dissenting from denial of certiorari)
(opining that, pursuant to J.E.B., it would be reasonable to apply Batson “to any
strike based on a classification that is accorded heightened scrutiny under the
Equal Protection Clause.”).
Of particular relevance here, the J.E.B. Court paid special attention to the
long history of discrimination against women and looked to its equal protection

7

jurisprudence requiring heightened judicial scrutiny of classifications based on sex.
See, J.E.B., 511 U.S. at 131-37. The Court recognized that, as was true for African
Americans, women suffered a long history of discrimination that included laws
barring them from participating in all aspects of society, including civic life and
the democratic process. J.E.B., 511 U.S. at 136. Consistent with Batson, the Court
concluded that the “long and unfortunate” history of discrimination against women
warrants heightened judicial scrutiny of peremptory challenges based on a
prospective juror’s sex. J.E.B., 511 U.S. at 136-37.
While the Court acknowledged, as it had in previous cases, that no one has a
right to serve on a jury, it reaffirmed that once an individual is summoned for jury
service, he or she has “an equal protection right to jury selection procedures that
are free from state-sponsored group stereotypes rooted in, and reflective of,
historical prejudice.” J.E.B. at 128, 129. The Court explained,
All persons, when granted the opportunity to serve on a jury, have the right
not to be excluded summarily because of discriminatory and stereotypical
presumptions that reflect and reinforce patterns of historical discrimination.
Striking individual jurors on the assumption that they hold particular views
simply because of their gender is ‘practically a brand upon them, affixed by
the law, an assertion of their inferiority.’ It denigrates the dignity of the
excluded juror, and, for a woman, reinvokes a history of exclusion from
political participation.

8

J.E.B., 511 U.S. at 141-42 (quoting Strauder v. West Virginia, 100 U.S. 303, 308
(1880)). Such discrimination, the Court found, must not be tolerated. J.E.B. at
129.
Applying Batson to preclude peremptory challenges based on sexual
orientation is consistent with, and warranted by, the logic and reasoning of J.E.B.
and the cases upon which it relied. Indeed, as explained in greater detail below,
lesbians and gay men have suffered a long history of discrimination at the hands of
the federal, state, and local governments. Far too often, as is the case here, sexual
orientation-based discrimination extends into the judicial system and precludes
lesbians and gay men from participating in our democratic institutions. As with
race- and sex-based peremptory challenges, allowing prospective jurors to be
precluded from the venire because of their sexual orientation serves no purpose
other than to perpetuate and reinforce invidious discrimination. Not only is this
harmful to the juror, the litigants, and the judicial system, it directly contravenes
the Equal Protection Clause and should not be permitted.
B. Pursuant to Batson v. Kentucky and Its Progeny, Peremptory Strikes
Based on Sexual Orientation Are Impermissible Because Such
Classifications Warrant Heightened Judicial Scrutiny.
Generally, government classifications – whether embodied in law or other
governmental action – are presumed valid if rationally related to a legitimate

9

government purpose. City of Cleburne, Texas v. Cleburne Living Center, 473 U.S.
432, 440 (1985). Certain classifications, however, carry a particularly high risk of
being employed illegitimately and are therefore treated as “suspect” or “quasisuspect.” United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938);
Cleburne, 473 U.S. at 440 (certain legal classifications must be considered
“suspect” or “quasi-suspect” because they “are so seldom relevant to the
achievement of any legitimate state interest that laws grounded in such
considerations are deemed to reflect prejudice and antipathy – a view that those in
the burdened class are not as worthy or deserving as others.”). See also Romer v.
Evans, 517 U.S. 620, 629 (1996) (noting that, to date, the Supreme Court has
accorded heightened scrutiny under equal protection analysis to classifications
based on race, national origin, sex, religion, illegitimacy, and alienage). In such
cases, courts must examine the classification under heightened judicial review. See
Cleburne, 473 U.S. at 440.
The issue of whether sexual orientation classifications warrant heightened
scrutiny remains unsettled in the Ninth Circuit and the Supreme Court. Although
this issue was recently before the Ninth Circuit in Perry v. Brown, the Court found
it unnecessary to decide whether heightened scrutiny applies to classifications
based on sexual orientation, because the ballot initiative at issue in that case could

10

not survive even rational basis review. No. 10-16696, 11-16577, 2012 U.S. App.
LEXIS 2328 at *66-67, 83 n.19 (9th Cir. Feb. 7, 2012) (finding the case analogous
to Romer v. Evans and employing rational basis review under an analysis similar to
that used in Romer). See also Diaz v. Brewer, 656 F.3d 1008, 1012 (9th Cir. 2011)
(“We do not need to decide whether heightened scrutiny might be required.”).
Prior Ninth Circuit cases also do not answer the question of whether
heightened scrutiny applies to sexual orientation. As mentioned above, while High
Tech Gays addressed the issue, that precedent can no longer be considered sound.
Indeed, the court relied on the since overruled Bowers v. Hardwick, 478 U.S. 186
(1986), and concluded that laws classifying lesbians and gay men for adverse
treatment are not subject to heightened scrutiny “because homosexual conduct can
. . . be criminalized.” High Tech Gays, 895 F.2d at 571. Lawrence renounced that
premise: “Bowers was not correct when it was decided, and it is not correct today.”
539 U.S. at 578.
High Tech Gays also relied on the mistaken assumption – now
authoritatively rejected by the Supreme Court – that sexual orientation is merely
“behavioral,” rather than the sort of deeply rooted, immutable characteristic that
would warrant heightened protection from discrimination. High Tech Gays, 895
F.2d at 573-74 (holding that the behavior of a group is “irrelevant to their

11

identification”). The Supreme Court has rejected this artificial distinction, noting
that its “decisions have declined to distinguish between status and conduct in th[e]
context” of sexual orientation. Christian Legal Soc’y v. Martinez, 130 S. Ct.
2971, 2990 (2010). The Supreme Court’s rejection of the legal foundations on
which High Tech Gays rested renders that decision and its progeny no longer
controlling and the appropriate level of scrutiny an open question. See Miller, 335
F.3d at 900.9
Accordingly, this Court should look to the Supreme Court’s well-established
framework for determining whether a classification should be treated with
suspicion and subjected to heightened scrutiny. See, e.g. United States v. Virginia,
518 U.S. 515, 531-32 (1996); Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987);
Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976). The Supreme
Court consistently has applied heightened scrutiny where the classified group has
suffered a history of discrimination, and the classification has no bearing on a

9

The Ninth Circuit also did not decide this issue in Witt v. Department of Air
Force, 527 F.3d 806 (9th Cir. 2008), challenging discharge under the military’s
“Don’t Ask, Don’t Tell” (“DADT”) policy. Witt did not involve a claim to
heightened scrutiny based on a sexual orientation-based equal protection claim, but
rather a claim to heightened scrutiny based on the deprivation of a due process
right. Id. at 824 n. 4 (Canby, J., concurring and dissenting). Accordingly, Witt did
not decide whether rational basis review was proper for sexual orientation
classifications under the Equal Protection Clause. Instead, the court merely noted
in a single sentence in dicta – and in the context of the military, where judicial
deference “is at its apogee” – that, if rational basis review were applied, DADT
would survive that inquiry. Id. at 821.
12

person’s ability to perform in society. See Murgia, 427 U.S. at 313 (heightened
scrutiny is warranted where a classified group has “experienced a ‘history of
purposeful unequal treatment’ or been subjected to unique disabilities on the basis
of stereotyped characteristics not truly indicative of their abilities.”); United States
v. Virginia, 518 U.S. at 531-32; Cleburne, 473 U.S. at 440-41. In addition, the
Supreme Court has occasionally, but not always, considered whether the group is a
minority or politically powerless, and whether the defining characteristic is
“immutable” or beyond the group member’s control. See Bowen, 483 U.S. at 602;
Lyng v. Castillo, 477 U.S. 635, 638 (1986).
Although the first two considerations are central to finding that a
classification is suspicious and should be afforded heightened scrutiny, the
Supreme Court has extended heightened scrutiny even where the latter two
considerations were absent. See, e.g. Nyquist v. Mauclet, 432 U.S. 1, 7-9 n.11
(1977) (treating lawful permanent aliens as a suspect class even though they may
opt out of that class voluntarily); Frontiero v. Richardson, 411 U.S. 677, 685-86
n.17 (1973) (heightened scrutiny applies to women even though women do not
constitute a small and powerless minority).
As demonstrated below, and as concluded by members of this Court, by
district courts within the Circuit, by several state supreme courts, and by the

13

Executive Branch, sexual orientation satisfies all of these considerations, and
heightened scrutiny should thus be applied to classifications based on sexual
orientation. See, e.g., Watkins v. United States Army, 875 F.2d 699, 724-28 (9th
Cir. 1989) (Norris, J., concurring); Golinski v. United States Office of Pers. Mgmt.,
No. 10-00257, 2012 U.S. Dist. LEXIS 22071 at *48 (N.D. Cal. 2012); Perry v.
Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), affirmed by 2012 U.S.
App. LEXIS 2328 (9th Cir. 2012) (upholding the decision under rational basis
review); Varnum v. Brien, 763 N.W.2d 862, 885-96 (Iowa 2009); In re Marriage
Cases, 43 Cal. 4th 757, 841-44 (Cal. 2008); Kerrigan v. Comm’r of Pub. Health,
289 Conn. 135, 175-227 (Conn. 2008). See also Attorney General Letter to
Congress, supra note 4 (“[T]he President and I have concluded that classifications
based on sexual orientation warrant heightened scrutiny”).
1. Lesbians and Gay Men Have Experienced a History of
Discrimination.
Lesbians and gay men have experienced a history of purposeful unequal
treatment both in the public and private spheres. The Ninth Circuit, along with a
number of other courts, has previously recognized that lesbians and gay men have
suffered a lamentable history of pervasive discrimination. Perry v. Proposition 8
Official Proponents, 587 F.3d 947, 954 (9th Cir. 2009) (observing that defendants
would be “hard pressed to deny that gays and lesbians have experienced

14

discrimination in the past in light of the Ninth Circuit’s ruling in High Tech
Gays”); Watkins, 875 F.2d at 724 (Norris, J., concurring). See also Rowland v.
Mad River Local Sch. Dist., 470 U.S. 1009, 1014 (1985) (Brennan, J., and
Marshall, J., dissenting from denial of certiorari) (“homosexuals have historically
been the object of pernicious and sustained hostility”); Golinski, 2012 U.S. Dist.
LEXIS 22071 at * 36 (“There is no dispute in the record that lesbians and gay men
have experienced a long history of discrimination.”); Perry, 704 F. Supp. 2d at
981-82 (“Gays and lesbians have been victims of a long history of discrimination”
in California and throughout the United States); Ben-Shalmon v. Marsh, 881 F.2d
454, 465-66 (7th Cir. 1989) (recognizing that lesbians and gay men have suffered a
long history of discrimination).
In an open letter to Congress, and briefing in subsequent court proceedings,
the Executive Branch has documented at length the discrimination that lesbians
and gay men have suffered at the hands of the federal, state, and local
governments. See Attorney General Letter to Congress, supra note 4.10 In fact, as
far as amici are aware, no court to consider this issue has ever ruled otherwise.

10

See Defendant’s Brief in Opposition to Motion to Dismiss filed in Golinski v.
United States Office of Pers. Mgmt., (Case No. 10-00257, N.D. Cal. 2012)
available at http://www.lambdalegal.org/in-court/legaldocs/golinski_us_20110701_defendants-brief-in-opposition-to-motion-to-dismiss .

15

2. Sexual Orientation Is Unrelated to the Ability to Contribute to
Society.
Rather than resting on “meaningful considerations,” laws that discriminate
based on sexual orientation, like laws that discriminate based on race, national
origin, or sex, target a characteristic that “bears no relation to ability to perform or
contribute to society.” Cleburne, 473 U.S. at 441. As one California district court
recently concluded, “sexual orientation has no relevance to a person’s ability to
contribute to society.” Golinski, 2012 U.S. Dist. LEXIS 22071 at *37. Indeed, for
over 30 years, the American Psychological Association has recognized that sexual
orientation “‘implies no impairment in judgment, stability, reliability, or general
social or vocational capabilities.’” High Tech Gays v. Def. Indus. Sec. Clearance
Office, 668 F. Supp. 1361, 1374 (N.D. Cal. 1987) (quoting American
Psychological Association Resolution (January 1975)), rev’d in part on other
grounds, 895 F.2d 563 (9th Cir. 1990). See also Watkins, 875 F.2d at 725 (internal
quotations omitted) (“Sexual orientation plainly has no relevance to a person’s
ability to perform or contribute to society.”) (Norris, J., concurring). In the words
of the Attorney General, “[r]ecent evolutions in legislation…and in social science
regarding sexual orientation all make clear that sexual orientation is not a
characteristic that generally bears on legitimate policy objectives.” Attorney
General Letter to Congress, supra note 4.

16

3. Lesbians and Gay Men Remain a Politically Vulnerable
Minority.
“[A]s a class, gay men and lesbians are a minority and have relatively
limited political power to attract the favorable attention of lawmakers.” Golinski,
2012 U.S. Dist. LEXIS 22071 at *43 (“the evidence and the law support the
conclusion that gay men and lesbians remain a politically vulnerable minority”).
Indeed, the very existence of laws that were at issue in Romer v. Evans and
Lawrence v. Texas, as well as “the longstanding ban on gays and lesbians in the
military, and the absence of federal protection for employment discrimination on
the basis of sexual orientation show the group to have limited political power and
‘ability to attract the [favorable] attention of the lawmakers.’” Attorney General
Letter to Congress, supra note 4 (quoting Cleburne, 473 U.S. at 445)). Put another
way, “the basic inability to bring about an end to discrimination and pervasive
prejudice, to secure desired policy outcomes and to prevent undesirable outcomes
on fundamental matters that directly impact their lives, is evidence of the relative
political powerlessness of gay and lesbian individuals.” Golinski , 2012 U.S. Dist.
LEXIS 22071 at *46.
That lesbians and gay men have made some political progress does not alter
the analysis. This prong of the analysis examines relative political powerlessness –
whether the “discrimination is unlikely to be soon rectified by legislative means” –

17

not absolute political powerlessness. Cleburne, 473 U.S. at 440. Had the Supreme
Court applied a standard of absolute political powerlessness to race and sex at the
time it was considering whether to subject those classifications to heightened
scrutiny, neither would have won more than rational basis review. For example,
when Korematsu v. United States, was decided, race discrimination was prohibited
by three federal constitutional amendments and federal civil rights enactments
dating back to 1866. 323 U.S. 214 (1944). And, when the Supreme Court applied
heightened review to sex-based discrimination in Frontiero v. Richardson,
Congress had “manifested an increasing sensitivity to sex-based classifications” by
enacting protections under Title VII of the Civil Rights Act of 1964 and the Equal
Pay Act of 1963, and by approving the federal Equal Rights Amendment for
ratification by the states. 411 U.S. at 685, 686 n. 17, 687. Furthermore, the
relevant inquiry is not just about the degree of current political powerlessness; as
women, racial and religious minorities have achieved greater measures of equality,
the constitutional scrutiny of such classifications has become no less searching.
See In re Marriage Cases, 183 P.3d at 443.
As was true for women when the Supreme Court applied heightened review
to sex-based discrimination in Frontiero v. Richardson, lesbians and gay men
remain “vastly under-represented in this Nation’s decisionmaking councils.”

18

Frontiero, 411 U.S. at 686 n. 17 (noting that there never has been a female
President, member of the U.S. Supreme Court or U.S. Senate; only 14 women held
seats in the U.S. House of Representatives; and underrepresentation is present
throughout all levels of state and federal government). Congress has only four
openly gay members.11 And, no openly gay person has ever served as President,
on the U.S. Supreme Court, in the U.S. Senate, or on any federal Court of
Appeals.12 Several systemic barriers contribute to this marked disparity, including
gay peoples’ invisibility, their targeting for hostility, powerful and well-funded
opposition, and relatively small minority numbers.13
Rather than affording lesbians and gay men effective means to protect
themselves from discrimination, the legislative process has in some ways uniquely

11

See Kerry Eleveld, Cicilline Becomes Fourth Gay Rep, Advocate.com (Nov. 2,
2010), available at http://www.advocate.com/News/Daily_News/ 2010/11/02/
Gay_Mayor_Cicilline_Elected_to_Congress.
12

See Courtney A. Powers, Finding LGBTs a Suspect Class: Assessing the
Political Power of LGBTs as a Basis for the Court’s Application of Heightened
Scrutiny, 17 Duke J. Gender L. & Pol’y 385, 395 (2010); Lisa Keen, Gay Federal
Appeals Nominee: 11 Months and Still Waiting for Hearing, Keen News Service
(Mar. 7, 2011), available at http://www.keennews service.com/2011/03/07/gayfederal-appeals-nominee-11-months-and-still-waiting-for-hearing.

13

See, e.g., Gary J. Gates, The Williams Institute, How many people are lesbian,
gay, bisexual, and transgender?, Executive Summary, at 1 (April 2011), available
at http://www3.law.ucla.edu/ williamsinstitute/pdf/How-many-people-are-LGBTFinal.pdf; see also Segura Decl. ¶ 49.

19

disadvantaged them. Lesbians and gay men persistently have been stripped of
basic antidiscrimination and family protections through the legislative and
initiative process. Ballot initiatives in no fewer than three-fifths of the states have
sought to eliminate their right to marry, and eleven additional states expressly deny
that right through statute.14 Further, in the Defense of Marriage Act, for the first
time in history, the federal government has singled out a minority group and
denied its members all recognition of their valid state marriages for any and all
federal purposes. Defense of Marriage Act (“DOMA”), Pub. L. No. 104-199, §3,
110 Stat. 2419 (1996). And, until just six month ago, the “Don’t Ask, Don’t Tell”
policy prohibited lesbians and gay men from serving openly in the military.15
To this day, lesbians and gay men remain unprotected in a majority of states
against discrimination in the most basic transactions of ordinary life, including in
private employment, housing, and public accommodations. Likewise, almost four
decades after the first federal sexual orientation anti-discrimination legislation was
introduced, no such federal legislation has succeeded in passing. See also Attorney
General Letter to Congress, supra note 4 (while the enactment of legislation related

14

See Human Rights Campaign, Statewide Marriage Prohibitions (2009),
available at http://www.hrc.org/documents/marriage_prohibitions_2009.pdf.

15

See Servicemembers Legal Defense Network, “About Don’t Ask, Don’t Tell”,
http://www.sldn.org/pages/about-dadt1 (summarizing the history of Don’t Ask,
Don’t Tell).

20

to hate crimes and DADT “indicate[s] that the political process is not closed
entirely to gay and lesbian people, that is not the standard by which the Court has
judged ‘political powerlessness.’” (emphasis in original)).
4. Sexual Orientation Is a Defining and Immutable
Characteristic.
Although the federal equal protection doctrine has never treated
immutability of a personal trait as a prerequisite for determining whether a
classification warrants strict scrutiny,16 the Ninth Circuit already has recognized
and reaffirmed that sexual orientation is immutable – an understanding that
conforms with the settled consensus of the major professional psychological and
mental health organizations. See, e.g., Hernandez-Montiel v. INS, 225 F.3d 1084,
1093 (9th Cir. 2000) (“Sexual orientation and sexual identity are immutable; they
are so fundamental to one’s identity that a person should not be required to
abandon them.”), overruled on other grounds, Thomas v. Gonzales, 409 F.3d 1177
(9th Cir. 2005); Golinski, 2012 U.S. Dist. LEXIS 22071 at *41 (same).
Courts have considered a trait “immutable” when altering it would “involve
great difficulty, such as requiring a major physical change or a traumatic change of

16

Laws that classify based on religion, alienage and legitimacy all are subject to
some form of heightened scrutiny, despite the fact that religious people may
convert, undocumented people may naturalize, and illegitimate children may be
adopted. See also Watkins, 875 F.2d at 725 (Norris, J., concurring) (the “Supreme
Court has never held that only classes with immutable traits can be deemed
suspect”).
21

identity,” or when the trait is “so central to a person’s identity that it would be
abhorrent for government to penalize a person for refusing to change [it].”
Watkins, 875 F.2d at 726 (Norris, J., concurring); Perry, 704 F. Supp. 2d at 964
(“No credible evidence supports a finding that an individual may . . . change his or
her sexual orientation”). Sexual orientation classifications thus violate the
fundamental principle that burdens should not be distributed – by a majority that
would not inflict them upon itself – “upon groups disfavored by virtue of
circumstances beyond their control.” Plyler v. Doe, 457 U.S. 202, 218 n. 14
(1982).17
In sum, as demonstrated above, classifications based on sexual orientation
require heightened judicial scrutiny. While satisfaction of the first two
considerations alone would warrant heightened scrutiny, classifications based on
sexual orientation satisfy all the indicia the Supreme Court has examined in
evaluating whether heightened scrutiny is appropriate. Because, like race and sex,
classifications based on sexual orientation generally are based on “prejudice and
antipathy” rather than any “legitimate state interest,” the courts must be suspicious
of governmental classifications based on sexual orientation to guard against

17

See American Psychological Association, Just the Facts About Sexual
Orientation & Youth: A Primer for Principals, Educators and School Personnel
(2008) (the notion that lesbians’ and gay men’s sexual orientation can be changed
or cured “has been rejected by all the major health and mental health professions”),
available at http://www.apa.org/pi/lgbt/resources/just-the-facts.pdf.
22

continued discrimination against lesbians and gay men at the hands of the
government. Cleburne, 473 U.S. at 440.
C. Batson v. Kentucky Also Bars Peremptory Strikes Against Lesbians and
Gay Men Because Such Strikes Discriminate Based on Sex and on the
Manner in Which Individuals Exercise Their Constitutionally Protected
Liberty Interest.
As GSK asserts in its brief, Dkt. 20-1, there are two additional bases upon
which the Court could apply Batson and its progeny to preclude peremptory strikes
based on sexual orientation.
First, it is settled law that Batson applies when a peremptory challenge is
used to strike a juror based upon gender. See United States v. Alanis, 335 F.3d
965, 968 (9th Cir. 2008) (finding gender discrimination where prosecutor used all
of her peremptory strikes to remove male jurors from the venire in a trial for
abusive sexual conduct). It also is settled that Batson is violated when a subset of a
particular gender is the subject of a peremptory strike. See United States v.
Omoruyi, 7 F.3d 880, 881 (9th Cir. 1993) (finding that prosecutor’s use of
peremptory challenges to strike single female jurors was impermissible even
though prosecutor did not exclude all women as evinced by the fact that there were
married women on the jury). As here, when a peremptory strike is used to remove
a gay man from the venire, a subset of men is being impermissibly singled out,
resulting in an impermissible gender-based peremptory challenge.

23

In addition, discrimination against a gay male juror is sex discrimination,
because he is being targeted by virtue of his sex relative to the sex of the person
with whom he has formed or would like to form an intimate relationship. See
Baehr v. Lewin, 852 P.2d 44, 67-68 (Haw. 1993); In re Levenson, 560 F.3d 1145,
1147 (9th Cir. EDR Op. 2009); In re Marriage Cases, 43 Cal. 4th 757, 853-54
(2008). Sex and sexual orientation “are necessarily interrelated, as an individual’s
choice of romantic or intimate partner based on sex is a large part of what defines
an individual’s sexual orientation.” Perry, 704 F. Supp. 2d at 996. Here, in
answering questions during voir dire the juror referred to his life partner as “he”
and made clear that the juror was in a relationship with a man. Dkt. 20-1 at 7. Had
the juror been a woman who formed romantic relationships with men rather than a
man who does so, the juror would not have been disqualified. This is both
formally a type of sex discrimination, and also a form of prohibited “sex
stereotyping” based on the notion that a “man” should form intimate relationships
with women. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (holding that
a woman who was denied partnership because she did not meet sex stereotypes had
an actionable claim for sex discrimination); Nichols v. Azteca Rest. Enterprises,
Inc., 256 F.3d 864, 874-75 (9th Cir. 2001) (finding impermissible sex
discrimination where sexual harassment of a gay man was the result of sex

24

stereotyping – a gay man was harassed by his male co-workers because he “did not
act as a man should act.”); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d
252, 261 n. 4 (1st Cir. 1999) (“Just as a woman can ground an action on a claim
that men discriminated against her because she did not meet stereotyped
expectations of femininity, a man can ground a claim on evidence that other men
discriminated against him because he did not meet stereotyped expectations of
masculinity.”).
Second, Batson applies to peremptory challenges based on sexual
orientation, because the classification is based upon the way in which the juror
excises his fundamental liberty interest in intimate personal relationships. See
Watkins, 875 F.2d at 721 n.23 (Under equal protection analysis, heightened
scrutiny applies “to classifications that burden the exercise of a fundamental or
important substantive right.”). Lesbians and gay men have a core liberty interest in
their intimate personal relationships, Lawrence v. Texas, 539 U.S. 558 (2003),
which this Court has held warrants heightened scrutiny. Witt v. Dep’t of Air Force,
527 F.3d 806, 819 (9th Cir. 2008) (defining the heightened scrutiny test applicable
to government intrusions on the private family relationships of gay people). The
Supreme Court has made clear that conduct – exercising one’s right to have an
intimate relationship with a person of the same-sex – is inextricably intertwined

25

with one’s identity. See Christian Legal Soc’y, 130 S.Ct. at 2990. In other words,
discrimination against a person because he chooses to have a relationship with
someone of the same sex amounts to discrimination against the individual because
he is gay. Id. In this vein, exercising a peremptory challenge to exclude a gay man
from the venire because he has a life partner of the same sex is tantamount to
discrimination against the prospective juror because he is gay. The Equal
Protection Clause subjects discrimination based on the way in which an individual
exercises his or her fundamental or important right to heightened scrutiny. See
Murgia, 427 U.S. at 312.
For these reasons, as further elaborated by GSK, Batson precludes striking a
gay man from the jury because of his sexual orientation.
II. PEREMPTORY CHALLENGES BASED ON SEXUAL ORIENTATION
HARM THE EXCLUDED JUROR AND THE JUDICIAL SYSTEM.
The Supreme Court has long recognized the significant harm of excluding
prospective jurors, or entire groups, from jury service for discriminatory reasons.
See, e.g. Batson, 476 U.S. at 87. Exclusion based on invidious discrimination that
historically has plagued the judicial system offends the rights and dignity of the
excluded juror, interferes with litigants’ right to a fair trial by an impartial jury, and
“undermines public confidence in the fairness of our system of justice.” Batson,
476 U.S. at 87; Edmonson, 500 U.S. at 628.

26

That lesbians and gay men have suffered a long history of discrimination by
federal, state, and local governments is clear. See supra Section I(B)(1). Lesbians
and gay men have long been barred from other hallmarks of civic participation,
such as service in the military and being able to legally marry. And, the experience
of lesbians and gay men in the court system has been one of widespread de facto
discrimination. Empirical studies from California and New Jersey confirm that
sexual orientation significantly and adversely affects court users’ experiences be it
as jurors, litigants, or other court users.18 Indeed, lesbians and gay men report that,
whether they were jurors or court users, when their sexual orientation became
visible, their experience with the court became increasingly negative.19
All discrimination is harmful; however, the impact is exacerbated when it
occurs within the courthouse. Edmonson, 500 U.S. at 628 (“Few places are a more
real expression of the constitutional authority of the government than the
courtroom, where the law itself unfolds.”). Allowing discriminatory court
procedures such as striking a juror based solely on a group characteristic such as
sexual orientation “denigrates the dignity of the excluded juror” and invokes a

18

 See

Todd Brower, Twelve Angry – And Sometimes Alienated – Men: The
Experiences and Treatment of Lesbians and Gay Men During Jury Service, 59
Drake L. Rev. 669, 674 (Spring 2011) (examining two empirical studies that
assessed the experiences of lesbians and gay men with the judicial system).
19

Brower, Supra note 18 at 676, 695-96.

27

history of exclusion and discrimination. J.E.B., 511 U.S. at 142. It sends a clear
message to “all those in the courtroom, and all those who may later learn of the
discriminatory act, [] that” gay men and lesbians “are presumed unqualified by
state actors to decide important questions upon which reasonable persons could
disagree.” Id.20 Not only does this perpetuate historical discrimination, it
undermines trust in the court system and reinforces the perception that “juries and
courts are ill-suited to provide gay people and their issues with a fair and respectful
hearing.”21
In addition, excluding prospective jurors from the venire because of their
sexual orientation deprives the juror of the opportunity to participate in democracy
and contribute to civic life. “[W]ith the exception of voting, for most citizens the
honor and privilege of jury duty is their most significant opportunity to participate
in the democratic process.” Powers, 499 U.S. at 407. For many, the experience is
an important educational opportunity that fosters democratic values and a sense of

20

Sending a message that lesbians and gay men are unfit to serve as jurors by
allowing peremptory challenges based on sexual orientation reinforces the
damaging message that historically has oppressed gay people in many areas – as
unfit to serve in the military, unfit to be parents, unfit to be teachers or police
officers, and unfit to marry. 
21

Brower, supra note 18 at 676, 695-96.

28

civic responsibility. People v. Garcia, 77 Cal. App. 4th 1269, 1279 (Cal. Ct. App.
2000). As the Supreme Court explained,
Equal opportunity to participate in the fair administration of justice is
fundamental to our democratic society. It not only furthers the goals of the
jury system, it reaffirms the promise of equality under the law….When
persons are excluded from participation in our democratic processes [for
discriminatory reasons], this promise of equality dims, and the integrity of
our judicial system is jeopardized.
J.E.B., 511 U.S. at 145-46.
Finally, excluding lesbians and gay men from the venire solely because of
their sexual orientation is a disservice to litigants, because it “deprives the jury of a
perspective on human events that may have unsuspected importance in any case
that may be presented.’” Taylor v. Louisiana, 419 U.S. 522, 699 n.12 (1975)
(quoting Peters v. Kiff, 407 U.S. 493, 502-504 (1972)). “This is not to say that all
[lesbians and gay men] see the world alike” or hold identical opinions or beliefs
about any given issue. Garcia, 77 Cal. App. 4th at 1277 (“Commonality of
perspective does not result in identity of opinion. That is the whole reason
exclusion based upon group bias is an anathema. It stereotypes.”). Rather, lesbians
and gay men have a common perspective that is “based upon membership” in the
lesbian and gay community and is informed by a shared history of persecution and
discrimination. Id. Courts have found that maintaining the “diverse and
representative character of the jury” is essential to impartiality of the jury that is

29

representative of the community rather than one dominant segment. See, e.g.
J.E.B., 511 U.S. at 134 (internal quotation marks omitted). “‘When any large and
identifiable segment of the community is excluded from jury service, the effect is
to remove from the jury room qualities of human nature and varieties of human
experience.’” Taylor, 419 U.S. at 699 n.12 (quoting Peters v. Kiff, 407 U.S. at
502-04)).
In sum, permitting peremptory challenges to exclude lesbians and gay men
from the venire inflicts harm that the Supreme Court has long recognized warrants
constitutional protection.
CONCLUSION
For the reasons stated herein, amici respectfully request that this Court hold
that the protections afforded in Batson and its progeny prohibit peremptory
challenges based on sexual orientation.

Respectfully submitted,
/s Shelbi D. Day_________
SHELBI D. DAY
TARA L. BORELLI
JON W. DAVIDSON
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
3325 Wilshire Blvd., Suite 1300

30

Los Angeles, California 90010
[phone]
[e-mail]
[e-mail]
[e-mail]
Counsel for Amici Curiae

Dated: March 28, 2012

31

CERTIFICATE OF COMPLIANCE
Undersigned counsel certifies that this brief complies with the type-volume
limitation of Fed. R. App. P. 29(d), because it contains 6971 words, excluding the
parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
Undersigned counsel further certifies that this brief complies with the
typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements
of Fed. R. App. P. 32(a)(6), because it has been prepared in a proportionally spaced
typeface using Microsoft 2007 in 14-point Times New Roman type style.
/s Shelbi D. Day
SHELBI D. DAY

32

APPENDIX A

33

American Civil Liberties Foundation of Northern California (ACLUNC), is the largest affiliate of the American Civil Liberties Union (ACLU), a
nationwide, nonpartisan organization with more than 550,000 members dedicated
to the defense and promotion of the guarantees of individual liberty secured by
state and federal Constitutions and civil rights statutes. ACLU-NC works on behalf
of lesbian, gay, bisexual and transgender people to win even-handed treatment by
government; protection from discrimination in jobs, schools, housing, and public
accommodations; and equal rights for same-sex couples and LGBT families.
Asian American Justice Center (“AAJC”), member of the Asian
American Center for Advancing Justice, is a national non-profit, non-partisan
organization in Washington, D.C., whose mission is to advance the civil and
human rights of Asian Americans and build and promote a fair and equitable
society for all. Founded in 1991, AAJC engages in litigation, public policy,
advocacy, and community education and outreach on a range of issues, including
anti-discrimination, and is committed to challenging barriers to equality based on
sexual orientation.
Asian Pacific American Legal Center (“APALC”), a member of the Asian
American Center for Advancing Justice, is the nation’s largest public interest law
firm devoted to the Asian American and Pacific Islander communities. As part of

34

its mission to advance civil rights, APALC has championed equal rights of the
LGBT community, including equal protection under the law.
Human Rights Campaign (“HRC”), the largest national lesbian, gay,
bisexual and transgender political organization, envisions an America where
lesbian, gay, bisexual and transgender people are ensured of their basic equal
rights, and can be open, honest and safe at home, at work and in the community.
Human Rights Campaign Foundation (“HRC Foundation”) is an
affiliated organization of the Human Rights Campaign. HRC Foundation’s
cutting-edge programs develop innovative educational resources on the many
issues facing lesbian, gay, bisexual and transgender individuals, with the goal of
achieving full equality regardless of sexual orientation or gender identity.
Lambda Legal Defense and Education Fund, Inc. (“Lambda Legal”) is
the nation’s oldest and largest nonprofit legal organization committed to achieving
full recognition of the civil rights of lesbians, gay men, bisexuals, and transgender
people, and those with HIV through impact litigation, education, and public policy
work. Lambda Legal was counsel in Lawrence v. Texas, 539 U.S. 558 (2003), and
Romer v. Evans, 517 U.S. 620 (1996), and has an interest in ensuring that laws and
other government acts that discriminate on the basis of sexual orientation receive
the heightened scrutiny that equal protection demands.

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Legal Momentum is the oldest legal defense and education fund dedicated
to advancing the rights of all women and girls. For more than 40 years, Legal
Momentum has made historic contributions through litigation and public policy
advocacy to advance economic and personal security for women.
Mexican American Legal Defense and Education Fund (“MALDEF”).
Founded in 1968, MALDEF is the nation’s leading Latino legal civil rights
organization. Its principal objective is to promote the civil rights of all Latinos
living in the United States through litigation, advocacy and education.
National Black Justice Coalition (“NBJC”) is a civil rights organization
dedicated to empowering Black LGBT people, and its mission is to eradicate
racism and homophobia. As American’s leading national Black LGBT civil rights
organization focused on federal public policy, NBJC envisions a world where all
people are fully-empowered to participate safely, openly and honestly in family,
faith and community, regardless of race, sexual orientation or gender identity.
National Center for Lesbian Rights (“NCLR”) is a national non-profit
legal organization dedicated to protecting and advancing the civil rights of lesbian,
gay, bisexual, and transgender people and their families through litigation, public
policy advocacy, and public education. Since its founding in 1977, NCLR has
played a leading role in securing fair and equal treatment for LGBT people and

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their families across the country involving constitutional and civil rights. NCLR
has an interest in ensuring that laws and other government action that treat people
differently based on their sexual orientation are subject to heightened scrutiny, as
equal protection requires.
National Gay and Lesbian Task Force Action Fund works to build the
grassroots political power of the LGBT community to win complete equality.
They do this through direct and grassroots lobbying to defeat anti-LGBT ballot
initiatives and legislation and pass pro-LGBT legislation and other measures.
National Gay and Lesbian Task Force Foundation (“Task Force”),
Founded in 1973, the Task Force is the oldest national LGBT civil rights and
advocacy organization. As part of a broader social justice movement, the Task
Force works to create a world in which all people may fully participate in society.
Southern Poverty Law Center (“SPLC”), is a nonprofit civil rights
organization dedicated to fighting hate and bigotry, and to seeking justice for the
most vulnerable members of society. SPLC’s work on behalf of the lesbian, gay,
bisexual, and transgender community spans decades – from an early case
challenging the military’s anti-gay policy, Hoffburg v. Alexander, to the
monitoring of anti-gay hate and extremist groups today.

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CERTIFICATE OF SERVICE
I hereby certify that on March 28, 2012, I electronically filed the foregoing
with the Clerk of the Court for the U.S. Court of Appeals for the Ninth Circuit by
using the appellate CM/ECF system. Participants in the case who are registered
CM/ECF users will be served by the appellate CM/ECF system.

__/s Shelbi D. Day
SHELBI D. DAY

Dated:

March 28, 2012

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