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.”
South Africa National Assembly Speaker Thoko Didiza on June 17 swore in lesbian feminist Palomino Jama as a new MP.
Jama joins other LGBTQ legislators — including Public Works and Infrastructure Minister Dean Macpherson; Forestry, Fisheries and the Environment Minister Dion George; and Deputy Women, Youth, and Persons with Disabilities Minister, Steve Letsike.
Jama said she will work hard and excel as MP.
“What a great moment to be alive. Thank you youth of 1976, thank you Simon Nkoli, Phumi Mthetwa, Paddy Nhlaphos, Vanessa Ludwig, and others for what you did for the LGBTI people in the 80s and 90s. Lastly, for the fierce fist of the Jamas to always hit where it matters for the people of this country,” said Letsike.
Embrace Diversity Movement, a local LGBTQ organization, said Jama’s inauguration came at an appropriate time, during Pride month.
“Her swearing-in took place during a month of profound significance in June, which marks both international Pride Month and Youth Month in South Africa,” said the group. “Palomino is a seasoned queer activist and dedicated community builder with a distinguished record of leadership and service.”
“The EDM proudly supports Palomino in her deployment to parliament, her presence meaningfully advances youth and queer representation in public office,” added the Embrace Diversity Movement. “We are confident that she will serve the people of South Africa with integrity, courage, and distinction.”
South Africa is the only African country that constitutionally upholds LGBTQ rights. There are, however, still myriad challenges the LGBTQ community faces on a daily basis that range from physical attacks to online abuse.
Letsike in May faced a barrage of online attacks after she released a scathing statement against popular podcaster Macgyver “MacG” Mukwevho, who during a podcast episode in April insinuated that the reason behind popular socialite Minnie Dlamini’s “unsuccessful” relationships were probably due to the bad odor from her genitals.
Letsike, who viewed MacG’s comments as offensive, called for the podcaster to be summoned before parliament’s Portfolio Committee on Women, Youth, and Persons with Disabilities and criticized the local television station that aired the podcast.
X users and other social media subscribers bombarded Letsike with anti-lesbian comments. She, however, was unphased.
Letsike continues to face anti-lesbian comments, even though MacG apologized and the television station on which his podcast had aired cancelled its contract with him.
Israel
Activist recalls experience in Tel Aviv after Israel-Iran war began
Marty Rouse was part of Jewish Federations of North America Pride mission
A long-time activist who was in Israel last month when its war with Iran began has returned to D.C.
Marty Rouse traveled to Israel on June 6 with the Jewish Federations of North America. The 5-day mission ended the night before the annual Tel Aviv Pride parade was scheduled to take place.
Mission participants met with Israeli President Isaac Herzog and several LGBTQ activists in Tel Aviv and Jerusalem. They visited the Western Wall, the Nova Music Festival site, and Nir Oz, a kibbutz in southern Israel that is less than a mile from the country’s border with the Gaza Strip. Mission participants also visited Sderot, a city that is roughly a mile from the Hamas-controlled enclave, a veterans rehabilitation facility, a new LGBTQ health center and the Aguda: The Association for LGBTQ Equality in Israel in Tel Aviv.
Hamas militants on Oct. 7, 2023, killed upwards of 360 partygoers and kidnapped dozens more at the music festival that was taking place at a campground near Re’im, a kibbutz that is roughly 10 miles southwest of Nir Oz. The militants killed or took hostage nearly a quarter of Nir Oz’s residents. They also took control of Sderot’s police station.
Tel Aviv Deputy Mayor Chen Arieli spoke at the mission’s closing party that took place at the Sheraton Grand, a hotel that overlooks Tel Aviv’s beachfront, on June 12.
Rouse and other mission participants planned to stay in Tel Aviv for the Pride parade, which was scheduled to take place the following day. He and Gordie Nathan, another mission participant who lives in Palm Springs, Calif., had checked into a nearby hotel that was less expensive.
“We said our farewells,” recalled Rouse when he spoke with the Washington Blade in D.C. on June 24. “We went to our hotels, and we get the warning, and then all hell broke loose.”
Israel early on June 13 launched airstrikes against Iran that targeted the country’s nuclear and military facilities.
Rouse said mission organizers told him and other participants who remained in Tel Aviv to meet at the Sheraton Grand for breakfast and dinner — Israel’s airspace was closed in anticipation of an Iranian counterattack, and authorities cancelled the Pride parade.
He said he went to bomb shelters at least twice a night for three nights.
Israel’s Home Front Command during the war typically issued warnings about 10 minutes ahead of an anticipated Iranian missile attack. Sirens then sounded 90 seconds before an expected strike.
Rouse and Nathan walked to the Sheraton Grand on June 13 when the Home Front Command issued a 10-minute warning. They reached the hotel in a couple of minutes, and staff directed them to the bomb shelter.
“You know to walk slowly, everything’s fine,” recalled Rouse. “You get 10 minutes, so everything was fine when the alarm goes off.”
Rouse described the Sheraton Grand shelter as “well lit” with WiFi, a television, and air conditioning. He was watching an Israeli television station’s live coverage of the Iranian missile attack when he saw one hit an apartment building in the Tel Aviv suburb of Ramat Gan.
A 74-year-old woman died and her boyfriend was seriously injured.
“I go over to look at the TV, just to watch,” recalled Rouse. “All of a sudden, you watch, and you see one bomb go and land and explode in Tel Aviv on TV. It landed and blew up.”
“I was like, okay, this is real, and so that was scary,” he added.
Rouse said the bomb shelter in the hotel where he and Nathan were staying after the mission ended was far less comfortable.
“It was dark. It was humid. It was hot. It was very uncomfortable,” said Rouse. “You really felt alone.”
Rouse and nearly everyone else on the mission who were in Tel Aviv when the war began left Israel on June 15. They boarded buses that took them to the Jordanian capital of Amman, which is a roughly 2 1/2-hour drive from Tel Aviv through the West Bank.
Rouse described the trip as “like a field trip” until they drove across the Jordan River and arrived at the Jordanian border crossing.
“You walk into this room, and instead of being in a well air-conditioned airport, you’re in this hot, humid, small place in the middle of the desert, packed with people, and those big, large, loud fans and pictures of military people on the walls,” he said. “It was almost like a Casablanca kind of feeling.”
Rouse said Jordanian authorities brought mission participants through customs in groups of 10. A Jewish Federations of North America liaison from Amman who previously worked as a tour guide for A Wider Bridge — a group that “advocates for justice, counters LGBTQphobia, and fights antisemitism and other forms of hatred” — went “behind closed doors” to ensure everyone was able to enter the country.
“It took a really long time,” Rouse told the Blade.
Mission participants arrived in Amman a short time later. They checked into their hotel and then had dinner at a restaurant.
“Now we feel like we’re safe and we’re in Amman,” recalled Rouse. “We’re sitting outside having a beautiful dinner.”
Iranian missiles passed over Amman shortly after Rouse and the other mission participants had begun to eat their dessert. They went inside the restaurant, and waited a few minutes before they boarded busses that brought them back to their hotel.
“No one was openly freaking out, which I was surprised by,” said Rouse.
The group was scheduled to fly from Amman to Cairo at 11 p.m. local time (4 p.m. ET) on June 16. They visited Jerash, an ancient city north of Amman, before their flight left Jordan.
“[The Jerash trip] actually took our minds off of everything,” said Rouse.
A Jewish Federations of North America contact met Rouse and the other mission participants at Cairo’s airport once their flight landed. Rouse arrived at JFK Airport in New York on June 17.
Trump-announced ceasefire ended 12-day war
President Donald Trump on June 23 announced a ceasefire that ended the 12-day war.
The U.S. three days earlier launched airstrikes that struck three Iranian nuclear sites. The ceasefire took effect hours after Iran launched missiles at a U.S. military base in Qatar.
Iran said the war killed more than 900 people in the country.
The Associated Press notes Iranian missiles killed 28 people in Israel. One of them destroyed Tel Aviv’s last gay bar on June 16.
The war took place less than two years after Oct. 7.
The Israeli government says Hamas militants on Oct. 7, 2023, killed roughly 1,200 people on that day when it launched its surprise attack on the country. The militants also kidnapped more than 200 people.
The Hamas-controlled Gaza Health Ministry says Israeli forces have killed nearly 55,000 people in the enclave since Oct. 7. Karim Khan, the International Criminal Court’s chief prosecutor, has said Israeli Prime Minister Benjamin Netanyahu and former Hamas leader Yahya Sinwar, who the IDF killed last October, are among those who have committed war crimes and crimes against humanity in Gaza and Israel.
Rouse upon his return to the U.S. said he “was never as aware of the comfort of another human being than I was during that time.” Rouse affectionately called Nathan his “bomb shelter boyfriend” and even questioned the way he reacted to the missile alerts.
“He’s sitting on the edge of the bed and he goes, okay, I’m going to put on my socks and my shoes, and I say, really? You’re going to put on your socks,” Rouse told the Blade. “The fact that I was nervous, that putting on socks might have changed the direction of our lives, to me was like I can’t believe I said that to him.”
Rouse quickly added Nathan helped him remain calm.
“If I was by myself, those nights would have been long enough,” said Rouse. “It’s a totally different feeling to be with another human that you know than to be by yourself.”
Rouse also praised the Jewish Federations of North America.
“JFNA really sprung into action and started to figure out all options to get us all safely home,” said Rouse. “It was all about logistics. Staff worked around the clock identifying and then mobilizing to get us back to the states. It was a great team effort and I know I speak for everyone in expressing our deep appreciation for their dedication to getting us safely home.”
Congress
Congress passes ‘Big, Beautiful Bill’ with massive cuts to health insurance coverage
Roughly 1.8 million LGBTQ Americans rely on Medicaid
The “Big, Beautiful Bill” heads to President Donald Trump’s desk following the vote by the Republican majority in the U.S. House of Representatives Thursday, which saw two nays from GOP members and unified opposition from the entire Democratic caucus.
To partially offset the cost of tax breaks that disproportionately favor the wealthy, the bill contains massive cuts to Medicaid and social safety net programs like food assistance for the poor while adding a projected $3.3 billion to the deficit.
Policy wise, the signature legislation of Trump’s second term rolls back clean energy tax credits passed under the Biden-Harris administration while beefing up funding for defense and border security.
Roughly 13 percent of LGBTQ adults in the U.S., about 1.8 million people, rely on Medicaid as their primary health insurer, compared to seven percent of non-LGBTQ adults, according to the UCLA School of Law’s Williams Institute think tank on sexual orientation and gender identities.
In total, the Congressional Budget Office estimates the cuts will cause more than 10 million Americans to lose their coverage under Medicaid and anywhere from three to five million to lose their care under Affordable Care Act marketplace plans.
A number of Republicans in the House and Senate opposed the bill reasoning that they might face political consequences for taking away access to healthcare for, particularly, low-income Americans who rely on Medicaid. Poorer voters flocked to Trump in last year’s presidential election, exit polls show.
A provision that would have blocked the use of federal funds to reimburse medical care for transgender youth was blocked by the Senate Parliamentarian and ultimately struck from the legislation — reportedly after the first trans member of Congress, U.S. Rep. Sarah McBride (D-Del.) and the first lesbian U.S. senator, Tammy Baldwin (D-Wis.), shored up unified opposition to the proposal among Congressional Democrats.
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