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
Gay D.C. police lieutenant arrested on child porn charges
Matthew Mahl once served as head of LGBT Liaison Unit
D.C. police announced on April 14 that they have placed one of their lieutenants, Matthew Mahl, on administrative leave and revoked his police powers after receiving information that he was arrested in Maryland one day earlier.
Although the initial D.C. police announcement doesn’t disclose the reason for the arrest it refers to a statement by the Harford County, Md. Sheriff’s Office that discloses Mahl has been charged with sexual solicitation of a minor and child porn solicitation.
“On Tuesday, the Harford County Sheriff’s Office contacted MPD’s Internal Affairs Division shortly after arresting Lieutenant Matthew Mahl,” the D.C. police statement says.
“The allegations in this case are extremely disturbing, and in direct contrast to the values of the Metropolitan Police Department,” the statement continues. “MPD’s Internal Affairs Division will investigate violations of MPD policy once the criminal investigation concludes,” it says.
“MPD is not involved in the criminal investigation and was not aware of the investigation until yesterday,” the statement adds.
Mahl served as acting supervisor of the MPD’s then Gay & Lesbian Liaison Unit in 2013 when he held the rank of sergeant. D.C. police officials placed him on administrative leave and suspended his police powers that same year while investigating an undisclosed allegation.
A source familiar with the investigation said Mahl was cleared of any wrongdoing a short time later and resumed his police duties. Around the time he was promoted to lieutenant several years later Mahl took on the role as chairman of the D.C. Police Union, becoming the first known openly gay officer to hold that position.
NBC 4 reports that Mahl, 47, has served on the police force for 23 years and most recently was assigned to the department’s Special Operations Division.
Records related to Mahl’s arrest filed in Harford County District Court, show Sheriff’s Department investigators state in charging documents that he allegedly committed the offenses of Sexual Solicitation of a Minor and Child Porn Solicitation on Monday, April 13, one day before he was arrested on April 14.
The court records show he was held without bond during his first appearance in court on April 14. A decision on whether he would be released while awaiting trial or continue to be held without bond was scheduled to be determined during an April 15 bond hearing. The outcome of that hearing could not be immediately determined.
National
Demonstrators disrupt OMB director hearing over PEPFAR
Capitol Police arrested five protesters
A group of protesters interrupted Office of Management and Budget Director Russell Vought during his testimony before Congress on Wednesday.
Vought was at the Cannon House Office Building to give testimony to the House Budget Committee.
Committee Chair Jodey Arrington (R-Texas) began the hearing by touting what he described as economic accomplishments of the Trump-Vance administration’s economic accomplishments. Ranking Member Brendan Boyle (D-Pa.) disputed those claims in his opening statement.
Boyle went on to admonish Vought for not attending a committee hearing in the previous year.
Vought, the “Project 2025” architect, was invited to speak after Arrington and Boyle made their statements.
Shortly after Vought began reading his statement, Housing Works CEO Charles King stood up in the gallery and began shouting, “PEPFAR saves lives: spend the money!”
The U.S. Capitol Police moved quickly to escort King from the room. Other activists began chanting with King as they unfolded signs bearing a picture of Vought’s face and statements such as, “Vought’s cuts kill people with AIDS,” and “Protect PEPFAR from Vought.”
The group of HIV/AIDS activists included independent activists, former U.S. Agency for International Development and PEPFAR staff, members of Health GAP, Housing Works, and the Treatment Action Group. Six activists were escorted from the hearing and the U.S. Capitol Police detained five of them.
The HIV/AIDS treatment activists protested at the hearing in response to the dismantling of global health programs, including PEPFAR, a federally-funded program credited with saving millions of lives from HIV/AIDS, particularly in sub-Saharan Africa.
“Russell Vought is directly responsible for illegally withholding Congressionally appropriated funds for PEPFAR and related global health initiative,” King said in a statement provided to the Washington Blade. “These funding disruptions have already contributed to preventable deaths and threaten to reverse decades of progress in the fight against HIV worldwide. Enough is enough. Congress must ensure Vought stops this deadly sabotage.”
National
HIV/AIDS group NMAC is ‘destabilized’ and in financial crisis: sources
Organization disputes allegations of mismanagement by new CEO
A statement sent to the Washington Blade by an anonymous source claiming to be a current staff member at NMAC, formerly known as the National Minority AIDS Council, alleges that the prominent HIV/AIDS advocacy organization is facing “a rapid and systemic collapse of leadership, governance, and ethical standards.”
The three-page detailed statement sent on April 4 by someone identifying himself only as “John Doe” includes multiple specific allegations that NMAC CEO Harold Phillips, who began his position in October 2025, “has destabilized the organization at every level,” including hiring nine new high-level appointees with salaries of $220,000 each who are performing “duplicative and unjustifiable roles.”
The Blade was able to corroborate some of the allegations by talking to two other knowledgable sources who spoke on condition of anonymity. Those sources said they had received the John Doe statement and believed many, if not most, of its allegations were accurate.
With a total staff of about 30 to 35 employees, the John Doe statement claims the high salaries of the nine new staff members have added to financial problems NMAC has been facing in recent years. It says that at least two NMAC staffers who raised concerns about Phillips’s actions were terminated on grounds of insubordination.
One of the two anonymous sources who spoke to the Blade said one of the dismissed staff members was considering filing a lawsuit against NMAC in response to the firing.
“An external firm was recently brought in to assess the organizational health,” the John Doe statement to the Blade says. “The findings were staggering — more than 50% of staff reported they are actively seeking employment elsewhere,” it says.
The Blade sent the John Doe statement to NMAC this week and asked for a response to the allegations.
NMAC spokesperson Jennifer Moore Phillips, who serves as chief strategy officer and who is not related to Harold Phillips, sent the Blade a short statement calling the John Doe allegations “false and purposefully misleading,” but which did not comment on each of the specific allegations.
“A recent anonymous letter containing unfounded allegations about NMAC makes claims that are simply false and purposefully misleading,” the NMAC statement says. “Evidenced by our new strategic plan and recent successful Biomedical HIV Prevention Summit in Chicago, NMAC’s new leadership is laser focused on delivering on our mission serving the HIV community with renewed energy and vision,” the statement concludes.
The Biomedical HIV Prevention Summit referred to in the statement, which took place in Chicago April 8-10 of this year, is one of the two largest HIV/AIDS related conferences that NMAC organizes each year. Jennifer Phillips said more than 1,400 people attended the event.
The largest NMAC event, the United States Conference on HIV/AIDS, the most recent of which was held in D.C. Sept. 4-7, drew more than 2,400 participants and was hailed by AIDS activists as a highly successful gathering of a diverse group of experts seeking to push for the end to the HIV/AIDS epidemic.
One of the keynote speakers at that conference was Paul Kawata, who served as executive director and CEO of NMAC for 36 years and who delivered his farewell address at the conference following the announcement that he would retire on Oct. 7, 2025.
Many of the conference speakers praised Kawata, who became NMAC’s leader two years after its founding in 1987, as the leading force behind its growth and evolution into one of the nation’s leading HIV/AIDS advocacy organizations with a special outreach to people of color.
It was at that time that Harold Phillips, who served as director of the White House Office of AIDS Policy under then-President Joe Biden and who later joined NMAC as deputy director before the NMAC board named him Kawata’s successor as CEO, emerged as NMAC’s next leader.
“The Board has exuberantly elected Harold Phillips as our new CEO,” said Lance Toma, chair of the NMAC Board of Directors at the time Phillips’s appointment was announced. “In this unprecedented moment, there is no one more strategically positioned and experienced to lead our movement through what we know will be some of the most tumultuous and complicated times ahead,” the statement said.
The John Doe statement raising questions about Phillips’s actions and leadership says NMAC staff members formally appealed to the board of directors to intervene.
“The Board has remained silent, while Harold arrogantly told the staff that ‘the board has my back,’” the statement says.
The Blade has also attempted to reach out to Kawata by email for comment on how he feels NMAC is doing six months after his retirement. As of April 14, Kawata had not responded to the Blade’s inquiry.
According to the John Doe statement, NMAC officials have recently “sought external financial rescue,” including a visit by an NMAC official to California to request assistance from the pharmaceutical company Gilead Sciences. “Without such intervention, layoffs seem imminent,” the statement says.
“This is not a functioning nonprofit,” the John Doe statement concludes. “It is an organization in crisis – bleeding resources, hemorrhaging staff, and operating without transparency, accountability, or governance,” it says, adding, “The communities NMAC serves, the donors who fund its mission, and the public at large deserve to know what is happening behind closed doors.”
By contrast, the NMAC website describes the organization as a highly functioning nonprofit continuing to lead the fight against HIV/AIDS.
“Launched in 1987 during the early years of the HIV/AIDS crisis in the United States, NMAC is a national HIV organization that offers capacity building, leadership development, policy education, and public engagement to end the HIV epidemic among communities most impacted in the United States,” a statement on the NMAC website says.
“In 2026, we mark 45 years of the HIV movement,” the statement adds. “NMAC continues to pivot to center the needs of people of color impacted by HIV by responding to political challenges that threaten federal funding and programs that have provided an essential survival safety net,” it says. “Simultaneously, as HIV treatment allows people to age with HIV, our whole-person approach extends to achieving optimal quality of life beyond attaining viral suppression.”
In its most recent action, NMAC issued a detailed press release on April 14 criticizing President Donald Trump’s proposed fiscal year 2027 budget provisions that call for cutting more than $1.5 billion in HIV prevention, substance use, housing and other programs. The release provides details on how the cuts would negatively impact important HIV prevention programs and urges Congress to reject the proposed cuts.
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Comings & Goings
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