News
Gay juror decision bodes well for marriage cases: experts
Ninth Circuit applies heightened scrutiny to laws related to sexual orientation
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.”
Congress
HRC president campaigns for Chris Pappas in NH
Gay congressman running to succeed retiring U.S. Sen. Jeanne Shaheen
Human Rights Campaign President Kelley Robinson on Sunday campaigned for U.S. Rep. Chris Pappas (D-N.H.) in New Hampshire.
Robinson traveled to Manchester, the state’s largest city, nine days before the Sept. 8 primary that will determine who will vie for retiring U.S. Sen. Jeanne Shaheen (D-N.H.)’s seat.
We’re hitting the pavement across New Hampshire to fight for a freer, fairer future for everyone.
Glad to have Human Rights Campaign President @KelleyJRobinson join us for a canvass launch in Manchester today. pic.twitter.com/XWCEaQxy4o
— Chris Pappas (@ChrisPappasNH) August 30, 2026
Former U.S. Sen. John E. Sununu, who represented New Hampshire in the U.S. Senate from 2003-2009, will face off against former U.S. Sen. Scott Brown, who represented Massachusetts in the U.S. Senate from 2010-2013, in the Republican primary.
Karishma Manzur is among the Democrats challenging Pappas.
A poll the University of New Hampshire Survey Center released on Aug. 26 shows Sununu is ahead of Brown. The same survey shows Pappas ahead of Manzur and his other Democratic challengers.
The UNH Survey Center poll shows Sununu ahead of Pappas by a 45-43 percent margin if they were to face off in the general election. The margin of error is +/-2.1 percent.
Pappas would become the first openly gay man elected to the U.S. Senate if he were to win in November.
Delaware
Michael Smith could make history as Delaware’s first LGBTQ treasurer
Promises to defend state from Trump administration
With experience as an economist, legislative staffer, and nonprofit director, Michael Smith is looking to protect Delaware from the Trump administration and become Delaware’s first openly LGBTQ treasurer.
With a master’s degree in economics from the University of Alabama, Smith has worked as an economist at the Progressive Policy Institute, Secretariat Economist, and Cornerstone Research.
“I think my work in economic and financial analysis has given me a lot of experience and know-how about what the treasurer role can and should be,” said Smith.
Smith also worked in the Delaware House Democratic Caucus in Dover, working with state representatives to improve the quality of life of Delawareans.
“I got to see where the rubber meets the road and how we can have policies that positively affect everyday working Delawareans.” said Smith.
In 2024, Smith narrowly lost a race to represent District 21 by 30 votes. He said that this loss gave him the itch to make a positive impact on the community.
Smith also founded and directed Powering Our Future, a nonprofit that promoted clean energy infrastructure throughout New Castle County.
“We helped people across Delaware reduce their energy bills and specifically try to encourage energy efficiency and electrification,” said Smith.
According to Smith, affordability is the biggest issue to voters, especially with the rising cost of utility bills.
“Everyone is worried about the affordability crisis. The cost of living is just incredibly high.”
“I’ve been knocking on doors for months now, and every time I hear people say: ‘My utility bill has gone up 75 percent. My property taxes are going through the roof. I can’t afford health care. I can’t afford to save for my children’s college or my own retirement.’”
“The treasurer cannot solve all those problems. But what we can do is we can help people save for them and their family’s future,” said Smith.
Smith talked about his goal to increase awareness around Delaware EARNS, a state sponsored Roth IRA geared toward people who don’t have access to a traditional employer-sponsored retirement plan.
“There’s roughly 150,000 Delawareans who could take advantage of it,” said Smith. “These are people who are the backbone of Delaware’s economy, whether they are working for small businesses, certain nonprofits, or working the gig economy,” said Smith.
Smith said that many people working for companies such as Doordash and Lyft are not saving for the future but that they could be doing so in a tax-advantaged way through Delaware EARNS.
“I think there’s some work that needs to be done to make a clear on-ramp for the self-employed and for those gig workers to get enrolled,” said Smith.
“Right now, we just passed our 10,000th account, which is fantastic, but there’s a lot of room left to grow.”
Smith also spoke of his plans to build on the Aspire 529 College Savings Plan, a project that helps traditionally underserved students finance their college education in ways that traditional 529 plans don’t.
Smith said that Delaware needs a treasurer who will work to protect the first state from the Trump administration, and he says is ready to step up to the plate.
“I think we need someone who’s willing to speak out and try to work with state treasurers, comptrollers, and other elected officials across the country to push back over the next two years.”
“We have a president in Washington, D.C., who is working with his Republican cronies in Congress to attack blue states like ours and threaten our federal funding.”
“I think that the best form of resistance is resilience,” said Smith.
Smith identifies as pansexual, having come out 10 years ago in college. He said that he is proud of the representation Delaware already has, from Rep. Sarah McBride to Travis McDermott, the mayor of Newark.
“I would love to partner with our attorney general, our governor, and our General Assembly to defend our LGBTQ+ citizens and residents as much as possible,” said Smith.
“I’d be honored to be Delaware’s first openly LGBTQ+ treasurer,” said Smith.
Mike Ramone, the Republican nominee for treasurer, has described Delaware as being in a ‘financial crisis.’The Blade asked Smith to respond to Ramone’s statement.
“I would disagree with Mike Ramone. I think Delaware is in a very strong financial shape, with the caveat of our state employee health benefits, which needs to be more well funded.”
Michael Smith will face Ted Lauzen and Mike Miller on the ballot for the Sept. 15 primary.
Poland
Poland begins to legally recognize same-sex marriages from other countries
‘This is an important milestone, but it should not be the final destination’
Poland has begun to recognize same-sex marriages legally performed outside the country.
TVP World, the country’s public broadcaster, reported civil registry offices began to “transcribe same-sex marriages legally” conducted outside of Poland on Aug. 22.
The EU Court of Justice in Luxembourg last November ruled in favor of a same-sex couple who challenged Poland’s refusal to recognize their German marriage. Poland’s Supreme Administrative Court in March reaffirmed the decision.
The couple, who lives in Poland, brought their case to Polish courts in 2019. The Supreme Administrative Court referred it to the EU Court of Justice.
The Polish government in May announced it will recognize same-sex marriages legally performed in other EU countries. Polish President Karol Nawrocki on July 17 vetoed bills that would have extended rights to same-sex couples.
Poland’s Constitutional Tribunal a few days later rejected the recognition of same-sex marriages legally performed in other EU countries. The Love Does Not Exclude Association, a Polish marriage equality advocacy group, in an Aug. 26 press release notes the ruling “does not prevent implementation of these new regulations” because the Constitutional Tribunal is “largely discredited” and the government considers it “to be improperly constituted.”
“This is an important milestone, but it should not be the final destination,” said Maja Heban of the Love Does Not Exclude Association. “No couple should have to cross a border to marry. Our goal is allowing loving, committed couples to marry in Poland in the first place. The law now increasingly recognizes these marriages once couples return to Poland in areas such as healthcare and social security, but significant gaps remain, mainly lack of recognition of same-sex parents which directly impacts security of their children.”
Germany, Belgium, France, Ireland, Spain, and Portugal are among the EU countries in which same-sex couples can legally marry. Andorra, whose prime minister, Xaviet Espot Zamora, is openly gay, and Switzerland are among the other European nations that have extended marriage rights to same-sex couples.
The Netherlands in 2001 became the first country in the world to extend marriage rights to same-sex couples. Activists who participated in this year’s World Pride that took place in Amsterdam earlier this summer marked this milestone.
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