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Gay juror decision bodes well for marriage cases: experts

Ninth Circuit applies heightened scrutiny to laws related to sexual orientation

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National LGBT Bar Association, Gay News, Washington Blade

The Ninth Circuit Court of Appeals applied heightened scrutiny in ruling against discrimination against gay jurors (image via wikimedia).

A ruling handed down by a federal appeals court on Tuesday in favor of LGBT non-discrimination in jury selection bodes well for the success of marriage equality litigation, according to legal experts who spoke to the Washington Blade.

Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender & Sexuality Law, said the decision is important in and of itself, but also because of its impact on the case pending before the same court against Nevada’s ban on same-sex marriage.

“The ruling will make it even more difficult for Nevada’s marriage law to withstand the current challenge to it because heightened scrutiny means that the government will have to identify an ‘important’ state interest if it wants to continue to exclude gay and lesbian couples from marriage,” Goldberg said.

On Tuesday, a three-judge panel on the U.S. Ninth Circuit Court of Appeals determined the trial judge erred in allowing one litigant to remove a juror because of his sexual orientation, remanding the case for a new trial.

The case — Glaxo Smith Kline v. Abbott Laboratories — is the result of antitrust, contracts and business tort claims filed against the company for quadrupling the price of its protease inhibitor booster drug used by people with HIV. During jury selection, Abbott used its first peremptory challenge to strike a prospective juror after learning he was gay.

Writing for the majority, U.S. District Judge Roy Reinhardt ruled that Abbott “unconstitutionally used a peremptory strike” to exclude Juror B from the case because of his sexual orientation, but goes further by saying the court must apply heightened scrutiny in its ruling in the wake of the U.S. Supreme Court decision against the Defense of Marriage Act.

“Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status,” Reinhardt writes. “In short, Windsor requires heightened scrutiny.”

It’s not the first time that an appellate court has applied heightened scrutiny, or a greater assumption a law is unconstitutional, when considering a case related to sexual orientation. The U.S. Second Circuit Court of Appeals applied that standard when ruling in favor of Edith Windsor in her case against DOMA before that lawsuit came before the Supreme Court.

Several federal district courts have made similar rulings, as have the state high courts of California, Iowa, Connecticut and New Mexico. The view that laws related to sexual orientation should be subject to heightened scrutiny is also shared by the Obama administration.

But the decision in the Ninth Circuit is significant because it creates precedent within that jurisdiction to apply heightened scrutiny in the numerous cases before it involving gay people and may encourage courts outside the circuit to do the same.

Doug NeJaime, a law professor at the University of California, Irvine, said the court application of heightened scrutiny to its decision “is very significant.”

“This Ninth Circuit ruling will likely encourage other courts to engage with the issue of whether Windsor suggests some heightened form of scrutiny,” NeJaime said. “More concretely, it will directly influence the challenge to Nevada’s marriage law currently before the Ninth Circuit; whether sexual orientation merits heightened scrutiny for federal equal protection purposes has been an issue throughout that case, and the district court had decided that it did not.”

Still, NeJaime said the Ninth Circuit’s decision to draw on the DOMA decision to apply heightened scrutiny “will likely be proven controversial” because U.S. Associate Justice Anthony Kennedy never explicitly invoked the level of scrutiny in his ruling.

The high-profile case involving sexual orientation before the Ninth Circuit is Sevick v. Sandoval, the challenge filed by Lambda Legal against Nevada’s ban on same-sex marriage.

Jon Davidson, Lambda’s legal director, said the ruling will have “a very significant impact” on the court’s examination of the Nevada marriage case.

“The Ninth Circuit’s ruling that sexual orientation discrimination must be given heightened scrutiny is further proof of the progress we are making in convincing courts that the Constitution affords LGBT people meaningful protections against government-imposed inequality,” Davidson said.

Opponents of the case, known as the Coalition for the Protection of Marriage, filed their brief before the Ninth Circuit on the same day as the jury selection ruling, arguing in an untimely manner that “there is no legal or factual basis for deploying ‘heightened scrutiny’ in this case.”

But the Nevada marriage case isn’t the only lawsuit pending before the Ninth Circuit. Other cases in the jurisdiction are the recently filed challenge against Arizona’s ban on same-sex marriage and the case against Oregon’s ban, which is currently before  gay U.S. District Judge Michael McShane.

Additionally, the challenge against the Arizona law signed by Gov. Jan Brewer rescinding domestic partner benefits for gay state employees is also before the Ninth Circuit. The court’s use of heightened scrutiny in the juror case could influence the decision in any of these cases.

Davidson added the application of heightened scrutiny in the juror case also has implications on gay government workers seeking relief if they feel they’ve faced discrimination on the job.

“If any federal, state, or local government agency or official in any of the nine states in the Ninth Circuit discriminates against someone based on their sexual orientation, they will have the burden of demonstrating that their action substantially furthers an important and legitimate government goal,” Davidson said. “They will not be able to rely on hypothetical or after the fact justifications.”

Despite the celebration over the standard of review in the case, LGBT advocates are also celebrating the ruling in its own right for establishing non-discrimination against gay people in the juror selection process.

D’Arcy Kemnitz, executive director of the National LGBT Bar Association, commended the Ninth Circuit.

“Jury service is a fundamental civic duty,” Kemnitz said. “LGBT people are proud to serve the courts when summoned. While some might jest at jury duty, in fact the courts demand through a subpoena that a person suspends their usual daily activity to be part of the rule of law.”

Legislation known as the Jury ACCESS Act, which would institute a rule of non-discrimination for gay jurors in federal courts, is also pending before Congress. Last year, it was incorporated into the Senate version of the fiscal year 2014 financial services appropriations bill, but it’s technically no longer pending because Congress passed omnibus spending legislation instead.

Sen. Jeanne Shaheen (D-N.H.), chief sponsor of the legislation, commended the Ninth Circuit for issuing the ruling, but said more action is needed from Congress.

“There is no place for discrimination in our judicial system, and it should be the right and obligation of every citizen to sit on a jury,” Shaheen said. “The appellate court’s ruling is an important step, but I will continue working to make sure no American can be excluded from this important civil responsibility on the basis of their sexual orientation or gender identity.”

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District of Columbia

Physician: addiction doesn’t always look the way you think it does

Yngvild Olsen headed HHS’s Center for Substance Abuse Treatment during Biden-Harris administration

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Dr. Yngvild Olsen (Photo courtesy of Olsen)

Many people think the telltale signs of drug addiction include sweating and vomiting. But a prominent addiction medicine physician says the best signals aren’t always so visible. 

Dr. Yngvild Olsen says more accurate signs come from the brain, specifically the compulsion to keep using drugs, including opioids, despite damage to education, career and relationships. 

While it may be harder to understand the true nature of drug addiction, it’s never been more important because of the increased fatality risk of even microscopic amounts of fentanyl, which can be found in many illegal drugs. 

Olsen, who headed the Center for Substance Abuse Treatment at the Department of Health and Human Services in the Biden-Harris administration, has worked in addiction treatment for more than two decades. She is now a healthcare advisor with the law and professional consulting firm Manatt, Phelps & Phillips and a physician at the Institute for Behavior Resources/Reach Health Services in Baltimore. 

Olsen met with Youthcast Media Group to discuss her career, the opioid epidemic and what to know about fentanyl. The physician, a graduate of Harvard Medical School and the John Hopkins Bloomberg School of Public Health, cited her field experiences as key in shaping her perspective on addiction treatment and recovery. This interview is edited for clarity and length. 

What made you believe this work in addiction treatment is important?

I had a couple of experiences really early on in my career that very significantly shaped my interest in addiction and addiction medicine, and my belief that I had a role, and that I could really help people get better from that disease. So the first was during the summer between my first and second year in medical school. I spent the summer on the Eagle Butte and Pine Ridge reservations in South Dakota and really saw firsthand just the devastating impact that substance use — in that case, alcohol — had on not only individuals, but their families and whole communities, and just how profound that impact had been for people who had lost their lives, who had lost family members, who had physically, emotionally and spiritually negative impacts of just feeling very hopeless and and trying to find solace in their substance use, particularly their alcohol use, and doing that without really finding it. I think that was really the lesson that experience taught me. 

What did you learn about treatment practices during your medical education? How was that helpful to your career?

When I was a resident in general primary care at Boston Medical Center, I was really fortunate to have a group of mentors who also were general internists, like I was training to be, who were very interested and focused on medical education and research in substance use. And so they modeled for me many of the interactions that we had with patients. I got to do a research study with one of them looking at smoking cessation among people with opiate use disorder, taking methadone. And really importantly, I got to spend a month with one of them at the Boston City Public Health Department’s Opioid Treatment Program, or what some people call a methadone clinic, because he was their medical director. I got to see people recover, and who had recovered, who had gotten their lives back together, gotten their families back together, had new families (or) businesses. It was unbelievably helpful to see that people could recover, that they did recover, and that I, as a physician, could be part of their treatment. I saw people get better, and recover, with medications like methadone and buprenorphine, and other services designed individually for them. That was really helpful and kind of a big eye-opening moment for me.

What factors contribute to addiction and why is it considered a complex disease?

People come into treatment for their addiction — or when they’re not in treatment, but are in an emergency department or on the street — with a lot of shame. They have a lot of shame about this disease that they have, that for so long, they were told, ‘Well, you know, you should just stop. Why can’t you just stop?’ Well, we know that addiction is a disease. It’s a complex disease that has lots of different factors related to it. So there’s a big genetic component that combines with environmental factors and other risk factors. For example, people have what’s called adverse childhood experiences. Some of these are if they grow up with lots of physical or sexual abuse or emotional abuse or have parents who are in jail. That’s really traumatic and so all those childhood experiences that increase stress are a big risk factor. 

What is the easiest opioid to get addicted to?

It used to be heroin. That was a big problem, particularly in the Northeast and other parts of the country. That shifted to prescription opioids, beginning around the year 2000. So for about 10 years, it was really prescription opioids that were a big problem — people misusing them. And then it switched back to heroin. And then in about 2015, fentanyl came on the scene, and that really changed the game, given just how unbelievably potent fentanyl is, so it doesn’t take a lot to cause an overdose. Now there are all those other synthetic opioids, like the orphines and nitazenes and all those combinations of other substances, but fentanyl is really what’s still kind of driving a really big part of the overdose crisis.

Do LGBTQ individuals face heightened challenges when battling addictions? How do addiction specialists like you account for those challenges?

We certainly know that the prevalence of overdose and the challenges of substances is higher in the LGBTQ+ community. Where I see patients, we did a big LGBTQ+ training and had a grant to specifically provide services to that population. Where we were located, in Baltimore City, there is a big transgender community not that far from us. Particularly in the LGBTQ+ population, they have multiple stigmas. So it just compounds multiple stressors. And stress is a risk factor for substance use, and particularly a risk factor for recurrence of a substance use disorder. And so when you have all these negative factors building up in people, that can make it that much more challenging for people to find the services that they find meaningful and that are welcoming and supportive of them. So we tried very hard — and we still do — to make sure that we are a welcoming and safe space, because I think it is that safety that is really paramount.

What advice would you give someone worried about a friend or family member’s substance use?

There are two things. One is: I would talk to that person about your concerns and how that person’s personality changes or their behavior changes when they’re using or in withdrawal, and how that might be impacting their health and how they’re feeling. And then second: you can let them know that there are actual treatments that are really helpful, that can make them feel better and that can help them get back to who they were before they started using. It’s important not to be accusatory because … [people] have a lot of shame already, and so when somebody starts accusing them, that shame just gets worse. And a lot of times, people who have a substance use disorder or are using opioids won’t necessarily agree that they have a problem when you first start to talk to them. But talk to them again every time something happens and say, ‘I’m really worried about you because this now has happened and I see it as being tied to your substance use.’ And let them know that there are people who can help and that they could actually feel a lot better.

This work is part of a partnership between the Washington Blade Foundation and Youthcast Media Group, funded in part through a FY26 Community Development Grant from the Office of D.C. Mayor Muriel Bowser. Adrian Malone is a senior at Bard High School Early College DC, one of Youthcast Media Group’s journalism class partners. Shreya Jyotishi, YMG assistant manager of content and programming, is a former Washington Blade intern and 2026 graduate of American University.

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Afghanistan

ICC unseals arrest warrants for Taliban officials accused of persecuting LGBTQ people, women

‘For LGBTIQ+ people, this matters enormously’

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The International Criminal Court in The Hague, Netherlands. (Washington Blade photo by Michael K. Lavers)

The International Criminal Court this week unsealed arrest warrants for four Taliban officials in Afghanistan accused of targeting LGBTQ people, women, and others who defy the group’s strict gender norms.

The warrants the ICC unsealed on Oct. 5 are for Hibatullah Akhundzada, the Taliban’s supreme leader, and Chief Justice Abdul Hakim Haqqani. The ICC also unsealed warrants for Education Minister Habibullah Agda and Higher Education Minister Neda Mohammad Nadim.

The ICC last year announced warrants for Akhundzada and Haqqani, as the Washington Blade previously reported.

“In the warrants of arrest, the (Pre-Trial) Chamber (II), in line with current developments in international law, found that the definition of ‘gender’ in the Rome Statute necessitates an interpretation that goes beyond a purely biological conception of sex,” reads the ICC’s Oct. 5 announcement. “It considered that it requires acknowledging the socially constructed roles, behaviors, expectations, and hierarchies traditionally associated with individuals on the basis of their sex. The Chamber considered that these societal constructs, commonly referred to as ‘gender norms,’ form part of the contextual lens through which acts amounting to gender-based persecution under article 7(1)(h) must be assessed.”

“It found that there are reasonable grounds to believe that the four suspects are criminally responsible for having ordered, induced or solicited the crime against humanity of persecution, under article 7(1)(h) of the Rome Statute, on gender grounds against girls, women, and other persons non-conforming with the Taliban’s policy on gender, gender identity or expression; and on political grounds against persons perceived as ‘allies of girls and women,’” it adds. “These crimes are believed to have been committed on the territory of Afghanistan since the Taliban seized power on Aug. 15, 2021, and have continued until at least Jan. 20, 2025.”

The Rome Statute established the ICC, which is in the Dutch city of The Hague, in 2002 after 60 countries ratified it.

The U.S. is among the countries that do not recognize the ICC. Secretary of State Marco Rubio on Friday announced U.S. sanctions against the ICC, which he described as a “rogue court.”

Then-ICC Chief Prosecutor Karim Khan in January 2025 announced a request for warrants against Taliban officials over their treatment of women and other groups since they regained control of Afghanistan in 2021. It marked the first time the ICC specifically named LGBTQ people as victims in a gender persecution case before it.

A report that Outright International released in 2023 notes Taliban officials have systematically targeted LGBTQ people — especially gay men and transgender women.

Taliban officials have subjected them to physical and sexual assault as well as arbitrary detention. The Outright International report also notes Taliban authorities have carried out public floggings for alleged same-sex sexual relations, and have collected intelligence on LGBTQ activists and community members.

Artemis Akbary, executive director of the Afghanistan LGBTIQ Organization, on Oct. 5 described the additional arrest warrants as “huge.”

“For LGBTIQ+ people, this matters enormously,” he said. “It strengthens the understanding that gender persecution can also capture persecution based on non-conformity with imposed gender roles, identities, and expressions.”

“This is an important development for accountability in Afghanistan, and potentially far beyond it,” added Akbary.

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District of Columbia

Bet Mishpachah participates in D.C. Oct. 7 commemoration ceremony

Wednesday marked three years since Hamas attacked Israel

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Bet Mishpachah Executive Director Joshua Maxey speaks at an Oct. 7 commemoration ceremony at Washington Hebrew Congregation in D.C. on Oct. 7, 2026. (Photo courtesy of Joshua Maxey)

Bet Mishpachah Executive Director Joshua Maxey on Wednesday was among those who spoke at a ceremony in D.C. that marked the third anniversary of the Oct. 7 attack in Israel.

The Jewish Federation of Greater Washington hosted the ceremony that took place at the Washington Hebrew Congregation in Northwest D.C. Bet Mishpachah is the city’s LGBTQ synagogue.

“It was a deeply moving evening, especially hearing the stories of people who knew those who were murdered and those who survived and experiencing music that gave a voice to grief and hope,” Maxey told the Washington Blade.

Hamas militants on Oct. 7, 2023, killed roughly 1,200 people, including upwards of 360 partygoers at the Nova Music Festival near Re’im, a kibbutz that is a couple miles from the Gaza Strip, when it launched its surprise attack on Israel. The militants also kidnapped more than 200 people.

The Hamas-controlled Gaza Health Ministry says Israeli forces have killed more than 74,000 people in the enclave since Oct. 7.

The International Criminal Court in 2024 issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu; former Israeli Defense Minister Yoav Gallant; former Hamas leader Yahya Sinwar; Mohamed Diab Ibrahim al-Masri, the head of Hamas’s military wing known as the Qassam Brigades; and Ismail Haniyeh, chair of the Hamas Political Bureau, after it accused them of committing war crimes and crimes against humanity in Gaza and Israel.

The Israeli government has strongly denied it has committed genocide in Gaza.

An Israeli airstrike on a compound in Khan Younis, a city in southern Gaza, on July 13, 2024, killed killed Deif, one of the alleged Oct. 7 masterminds. Israel less than three weeks later assassinated Haniyah in Tehran, the Iranian capital. Israel Defense Forces soldiers on Oct. 16, 2024, killed Sinwar in Rafah, a city in southern Gaza.

Hamas last October released the remaining hostages in Gaza as part of a ceasefire agreement that President Donald Trump helped broker. Israel has continued to conduct airstrikes and other military operations in Gaza since the official suspension of hostilities took effect.

“For Bet Mishpachah, it was especially meaningful to lift up the names of LGBTQ+ people, those whose identities we know and those whose stories may never be fully known, who were murdered, and to honor the LGBTQ+ survivors whose resilience continues to inspire us,” said Maxey, referring to his participation in Wednesday’s ceremony. “Emily Damari’s story is particularly poignant: while held hostage, she had to hide the fact that she was gay because she feared that revealing her identity to her captors could put her life at even more risk. Yet, she survived.”

“Her story, like so many others, reminds us of the extraordinary courage it takes simply to remain human in the face of hatred,” he added. “May we continue to remember and to mourn, to honor, and to work toward a future rooted in peace and hope.”

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