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.”
District of Columbia
Man arrested for destroying D.C. Pride decorations, spray painting hate message
Court records show prosecutors did not list offense as hate crime
D.C. police this week announced they have arrested a Maryland man on charges of Destruction of Property and Defacing Private Property for allegedly pulling down and ripping apart rainbow colored cloth Pride ornaments on light poles next to Dupont Circle Park on June 2.
In a June 10 statement police said the suspect, identified as Michel Isaiah Webb, Jr., 30, also allegedly spray painted an anti-LGBTQ message on the window of a private residence in the city’s Southwest waterfront neighborhood two days later on June 4.
An affidavit in support of the arrest filed by police in D.C. Superior Court on June 9 says Web was captured on a video surveillance camera spray painting the message “Fuck the LGBT+ ABC!” and “God is Real.” The affidavit does not say what Webb intended the letters “ABC” to stand for.
“Detectives located video and photos in both offenses and worked to identify the suspect,” the police statement says. “On Sunday, June 8, 2025, First District officers familiar with these offenses observed the suspect in Navy Yard and made an arrest without incident.”
The statement continues: “As a result of the detectives investigation, 30-year-old Michael Isaiah Webb, Jr. of Landover, Md. was charged with Destruction of Property and Defacing Private Property.”
It concludes by saying, “The Metropolitan Police Department is investigating this case as potentially being motivated by hate or bias. The designation can be changed at any point as the investigation proceeds, and more information is gathered. A designation as a hate crime by MPD does not mean that prosecutors will prosecute it as a hate crime.”
The online D.C. Superior Court docket for the case shows that prosecutors with the Office of the United States Attorney for D.C. charged Webb with just one offense – Defacing Public or Private Property.
The charging document filed by prosecutors, which says the offense was committed on June 4, declares that Webb “willfully and wantonly wrote, marked, drew, and painted a word, sign, or figure upon property, that is window(s), without the consent of Austin Mellor, the owner and the person lawfully in charge thereof.”
But the charging document does not designate the offense as a hate crime or bias motivated crime as suggested by D.C. police as a possible hate crime.
A spokesperson for the U.S. Attorney’s office didn’t immediately respond to a request from the Washington Blade for an explanation of why the office did not designate the offense as a hate crime and why it did not charge Webb in court with the second charge filed by D.C. police of destruction of Property for allegedly destroying the Pride decorations at Dupont Circle.
The online public court records show that at a June 9 court arraignment Webb pleaded not guilty and Superior Court Judge Robert J. Hildum released him while awaiting trial while issuing a stay-away order. The public court records do not include a copy of the stay-away order. The judge also ordered Webb to return to court for a June 24 status hearing, the records show.
The arrest affidavit filed by D.C. police says at the time of his arrest, Webb waived his right to remain silent. It says he claimed he knew nothing at all about the offenses he was charged with.
“However, Defendant 1 stated something to the effect of, ‘It’s not a violent crime’ several times during the interview” with detectives, according to the affidavit.
The charge filed against him by prosecutors of Defacing Public or Private Property is a misdemeanor that carries a possible maximum penalty of 180 days in jail and a fine up to $1,000.
Delaware
Delaware hosts LGBTQ flag raising ceremony
Gov. Matt Meyer declares June 2025 as Pride month
Delaware Gov. Matt Meyer hosted a flag raising ceremony and presented a proclamation marking June 2025 as Pride month on Tuesday.
The public event took place at 11 a.m. at Legislative Hall in Dover.
“For many, many years of our state’s history, coming out here and doing what we’re doing today would have been just about unimaginable,” Meyer said at the event. “Today, this is a symbol of all of the progress that we have all made together.”
Lieutenant Gov. Kyle Evans Gay, Sens. Dan Cruce, Russ Huxtable, and Marie Pinkney, Reps. Eric Morrison, Deshanna Neal, and Claire Snyder-Hall, and LGBTQ+ Commission Chair Cora Castle and Vice Chair Vienna Cavazos were in attendance, among others.
Last week, Meyer announced the members of a new LGBTQ+ commission, which will work with the state government to improve services in areas such as employment, equality, education, mental health, social services, health, and housing.
As Pride month continues, Delaware is currently considering an amendment to codify same-sex marriage in its Constitution.
“Today is about making history and raising this flag,” said Lt. Gov. Gay at the event. “Today is about charting a new course forward with our new commission and today is about marking how far we’ve come.”
South Africa
South African activists demand action to stop anti-LGBTQ violence
Country’s first gay imam murdered in February
Continued attacks of LGBTQ South Africans are raising serious concerns about the community’s safety and well-being.
President Cyril Ramaphosa in May 2024 signed the Preventing and Combating of Hate Crimes and Hate Speech Bill into law that, among other things, has legal protections for LGBTQ South Africans who suffer physical, verbal, and emotional violence. Statistics from the first and second quarters of 2025 have painted a grim picture.
Muhsin Hendricks, the country’s first openly gay imam, in February was shot dead in Gqeberha, in a suspected homophobic attack. Authorities in April found the body of Linten Jutzen, a gay crossdresser, in an open field between an elementary school and a tennis court in Cape Town.
A World Economic Forum survey on attitudes towards homosexuality and gender non-conformity in South Africa that Marchant Van Der Schyf conducted earlier this year found that even though 51 percent of South Africans believe gay people should have the same rights as their heterosexual counterparts, 72 percent of them feel same-sex sexual activity is morally wrong. The survey also notes 44 percent of LGBTQ respondents said they experienced bullying, verbal and sexual discrimination, and physical violence in their everyday lives because of their sexual orientation.
Van Der Schyf said many attacks occur in the country’s metropolitan areas, particularly Cape Town, Durban, and Johannesburg.
“Victims are often lured to either the perpetrator’s indicated residence or an out-of-home area under the appearance of a meet-up,” said Van Der Schyf. “The nature of the attacks range from strangulation and beatings to kidnapping and blackmail with some victims being filmed naked or held for ransom.”
The Youth Policy Committee’s Gender Working Group notes South Africa is the first country to constitutionally protect against discrimination based on sexual orientation and the fifth nation in the world to extend marriage rights to same-sex couples. A disparity, however, still exists between legal protections and LGBTQ people’s lived experiences.
“After more than 20 years of democracy, our communities continue to wake up to the stench of grief, mutilation, violation, and oppression,” said the Youth Policy Committee. “Like all human beings, queer individuals are members of schooling communities, church groups, and society at large, therefore, anything that affects them should affect everyone else within those communities.”
The Youth Policy Committee also said religious and cultural leaders should do more to combat anti-LGBTQ rhetoric.
“Religious institutions seem to perpetuate the hate crimes experienced by queer individuals,” said the group. “In extreme cases, religious leaders have advocated for killings and hateful crimes to be committed against those in the queer community. South Africa’s highly respected spiritual guides, sangomas, are also joining the fight against queer killings and acts of transphobia and homophobia.”
“The LGBTQIA+ community is raising their voice and they need to be supported because they add a unique color to our rainbow nation,” it added.
Steve Letsike, the government’s deputy minister for women, youth, and persons with disabilities, in marking the International Day Against Homophobia, Biphobia, and Transphobia on May 17 noted Ramaphosa’s administration has enacted legislative framework that protects the LGBTQ community. Letsike, however, stressed the government still needs to ensure its implementation.
“We have passed these policies and we need to make sure that they are implemented fully and with urgency, so that (LGBTQ) persons can self-determine and also have autonomy without any abusive requirements,” said Letsike. “We need families, faith leaders, traditional authorities, and communities to rise together against hate. Our constitution must remain respected.”
Siphokazi Dlamini, a social justice activist, said LGBTQ rights should be respected, as enshrined in the constitution.
“It is terrible to even imagine that they face discrimination despite the fact that this has been addressed numerous times,” said Dlamini. “How are they different from us? Is a question I frequently ask people or why should they live in fear just because we don’t like the way they are and their feelings? However, I would get no response.”
Dlamini added people still live in fear of being judged, raped, or killed simply because of who they are.
“What needs to be addressed to is what freedom means,” said Dlamini. “Freedom means to have the power to be able to do anything that you want but if it doesn’t hurt other people’s feelings while doing it. There is freedom of speech, freedom from discrimination, freedom of expression, of thought, of choice, of religion, of association, and these needs to be practiced. It is time to take such issues seriously in order to promote equality and peace among our people, and those who do not follow these rules should be taken into custody.”
Van Der Schyf also said LGBTQ South Africans should have a place, such as an inquiry commission, that allows them to talk about the trauma they have suffered and how it influences their distrust of the government.
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