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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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Congress

House GOP sinks their own spending bill, Dems object to anti-LGBTQ riders

Vote was 216-212

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U.S. Capitol
U.S. Capitol (Washington Blade photo by Michael Key)

A group of four hardline House Republicans on Thursday joined Democratic colleagues to sink their own spending bill, a $886 billion military appropriations package full of riders from GOP members that include anti-abortion and anti-LGBTQ provisions.

The 216-212 vote raised the likelihood of a government shutdown if lawmakers are unable to forge a path forward before the end of September.

“Instead of decreasing the chance of a shutdown, Speaker McCarthy is actually increasing it by wasting time on extremist proposals that cannot become law in the Senate,” Senate Majority Leader Chuck Schumer (D-N.Y.) said.

His counterpart in the House, Republican Speaker Kevin McCarthy (Calif.) expressed frustration with his own caucus, characterizing the impasse he has reached with colleagues as “frustrating in the sense that I don’t understand why anybody votes against bringing the idea and having the debate.”

“And then you got all the amendments if you don’t like the bill,” he continued. “This is a whole new concept of individuals that just want to burn the whole place down — it doesn’t work.”

A group of 155 House Democrats on Thursday issued a letter objecting to anti-LGBTQ provisions in the bill, the 2024 National Defense Authorization Act, addressing the message to U.S. Sens. Jack Reed (D-R.I.) and Roger Wicker (R-Miss.), chair and ranking member of the Senate Armed Services Committee, and U.S. Reps. Mike Rogers (R-Ala.) and Adam Smith (D-Wash.), chair and ranking member of the House Armed Services Committee.

The effort was led by Congressional Equality Caucus Chair U.S. Rep. Mark Pocan (D-Wis.) and the co-chairs of the Caucus’s Transgender Equality Task Force, U.S. Reps. Sara Jacobs (D-Calif.) and Pramila Jayapal (D-Wash.).

Specifically, the letter argues several anti-equality amendments would “actively target LGBTQ+ service members and LGBTQ+ dependents and threaten the recruitment, retention, and readiness of our Armed Forces.”

Among these are riders prohibiting coverage of gender affirming healthcare interventions for service members and their dependents; banning LGBTQ Pride flags, drag shows and other events; and restricting funding for certain books in schools operated by the Department of Defense Education Activity.

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Canada

Eight jailed across Canada during anti-LGBTQ sex ed rallies

Prime minister condemned bigotry; counterprotests outnumbered demonstrations

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Protests sparked across Canada over gender policies in schools took place on Sept. 20, 2023. (Screenshot/YouTube CBC)

A highly coordinated series of anti-LGBTQ protests rocked more than 80 cities across Canada on Wednesday, in a significant escalation of tactics by Canada’s anti-LGBTQ extremists.

The coordinated protests dubbed 1 Million March 4 Children are demanding an end to discussions on sexual orientation and gender identity in Canadian classrooms. They come as several Canadian provinces have enacted policies that require students to have parental permission to change their preferred name or pronoun used in schools, and shortly after the federal Conservative Party adopted a series of anti-trans policies at its national convention.

According to its website, 1 Million March 4 Children is calling for “the elimination of the Sexual Orientation and Gender Identity (SOGI) curriculum, pronouns, gender ideology and mixed bathrooms in schools.” The website also lists among its supporters numerous groups that were opposed to masking policies during the COVID-19 pandemic, anti-vaccine groups, groups that promote conspiracy theories, and groups that support the truck convoys that laid siege to Ottawa and several U.S. border crossings last year.

Protests happened from coast to coast, in big cities, suburbs and small towns, but in most cases, they were met with coordinated counter-protests in support of LGBTQ rights who greatly outnumbered the protesters. 

CBC reported that counter-protesters numbered roughly double the anti-LGBTQ protesters in St. John’s, Newfoundland.  

Inclusive sex education has long been part of school curriculums in most provinces in Canada and has generally enjoyed support from all major political parties.

While the protests where mostly peaceful, at least four anti-LGBTQ protesters were arrested after getting into altercations with counter-protestors in British Columbia, and police advised that the protest in front of the provincial legislature had become “unsafe.”

Police in Nanaimo, British Columbia, tackled and arrested one man who attempted to flee after allegedly getting into a physical altercation at City Hall. Two protestors were also arrested in Victoria, British Columbia, as they demonstrated in front of the provincial legislature, and another protester was arrested in Vancouver. Police in both cities did not provide additional information.

Ottawa police also arrested two protesters for allegedly inciting hatred and another for causing a disturbance in at the protest in front of Parliament.

And Toronto police arrested 47-year-old protester Julia Stevenson for allegedly bringing a weapon to the demonstration outside the provincial legislature. Police did not give further details about what kind of weapon she is alleged to have been carrying.

Prime Minister Justin Trudeau, who was at the U.N. General Assembly in New York, condemned the anti-LGBTQ protests in a tweet on X, formerly Twitter.

“Let me make one thing very clear: Transphobia, homophobia and biphobia have no place in this country. We strongly condemn this hate and its manifestations, and we stand united in support of 2SLGBTQI+ Canadians across the country — you are valid and you are valued,” he wrote.

Conservative Party leader Pierre Poilievre did not put out any statement on the protests, nor did deputy leader Melissa Lantsman, who is openly lesbian and has previously spoken out on LGBTQ issues on behalf of the party. 

The leader of the left-leaning New Democratic Party Jagmeet Singh joined the counter-protestors who demonstrated in Ottawa and marched toward Parliament Hill.

“We know that there’s a lot of folks that don’t feel safe because of the rise in hate and division that’s targeting vulnerable people,” Singh told CTV. “But then you see a lot of people coming together, and it shows the strength of solidarity, of us supporting each other, of having each other’s back.”

Alberta Teachers’ Association President Jason Schilling says the protesters are part of a North America-wide movement fomenting hatred against queer people using misinformation and lies.

“Using ‘parental consent’ as camouflage, this rally was part of a coordinated strike across North America to promote misinformation, intolerance and hate toward the 2SLGBTQIA+ community, as well as toward teachers who work to protect the safety and well-being of all students,” Schilling said in a statement.

In many cities, the anti-LGBTQ protests were officially condemned by mayors and school boards.

Toronto Mayor Olivia Chow, who has publicly supported LGBTQ rights since the 1980s, issued a strong statement condemning the protests

“We stand against all forms of discrimination, hatred and bigotry, and for the safety and well-being of all young people. Some wish to target our schools and libraries to spread hate. We know these must be spaces that welcome everyone, especially students,” Chow wrote.

The city of Whitehorse, Yukon, issued a statement condemning bigotry in advance of the protests.

“While the city supports people’s right to organize and protest, we stand by our 2SLGBTQIA+ community members and their right to live their true selves safely and free of harassment and hate. The promotion of anti-2SLGBTQIA+ ideas has no place in our community and messages that target fellow community members will not be tolerated,” the statement says.

However, New Brunswick Primer Blaine Higgs, who was the first to introduce a “parental consent” policy for trans students, joined the protesters in front of the provincial legislature in Fredericton. 

“I think our parents should become knowledgeable about what their kids are being taught and what is important for them to learn in schools and what’s important for parents to make decisions on with kids that are under 16-years-old,” Higgs told reporters.

British Columbia Conservative Party leader John Rustad went further in a statement on the protests. While he says he doesn’t “officially” support the protests, if his party wins next year’s election, he promised to cancel the province’s sex ed curriculum and implied he would ban transgender girls from sports.

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National

LGBTQ media ‘excited’ about Press Forward national media funds

Coalition of donors pledges $500 million for local news

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Members of News Is Out, a collaborative of six leading LGBTQ media organizations across the country, have expressed support and excitement about the newly announced national Press Forward effort to support local media in the United States. News Is Out members represent more than 200 years of LGBTQ news and culture coverage, with two member papers starting more than 50 years ago.

“This new effort from foundations, including MacArthur Foundation and Knight Foundation, truly will be a game-changer in the local media space,” said Tracy Baim, co-founder of Windy City Times, which is part of a Chicago collaborative that is also advocating for local funding in that city. “Local media are critical to covering issues across the country, from LGBTQ+ and environmental issues to education and criminal justice reform. Philanthropy can provide an important complement to other needed revenues to help local media survive and thrive.”

In the U.S., 7.1 percent of adults, or 18 million people, identify as LGBTQ, according to Gallup. About 21 percent of Gen Z identifies as LGBTQ. The media serving this community has been life-saving, resource sharing and an integral part of the movement for LGBTQ equality, News Is Out members said, adding that this media continues to fill a vital information need.

According to the Press Forward announcement, “A coalition of 22 donors announced Press Forward, a national initiative to strengthen communities and democracy by supporting local news and information with an infusion of more than a half-billion dollars over the next five years.

“Press Forward will enhance local journalism at an unprecedented level to re-center local news as a force for community cohesion; support new models and solutions that are ready to scale; and close longstanding inequities in journalism coverage and practice.”

The Knight Foundation and the John D. and Catherine T. MacArthur Foundation have been leading the Press Forward effort.

News Is Out is supported in part by a technology grant from the Knight Foundation. The program is called the Queer Media Sustainability Lab

News Is Out is a nearly two-year-old alliance created launched by the Local Media Association, with initial funding from Google News Initiative. The members are Bay Area Reporter, Dallas Voice, Philadelphia Gay News, Washington Blade, Windy City Times and TAGG, a national queer women’s magazine.

News Is Out members have collaborated on editorial, business and fundraising opportunities.

“LGBTQ media have always played a critical role in covering and informing our communities,” said Lynne Brown, publisher of the Washington Blade. “While we have lost dozens of LGBTQ news media outlets in recent years, those of us who have survived are thriving in 2023. We have done so because we have innovated and sought new forms of revenue. The News Is Out Collaborative has assisted with support that propels us forward.”

“LGBTQ+ media is needed now more than ever, as our communities face a backlash across this country,” said Leo Cusimano, publisher of the Dallas Voice. “By working together in News Is Out, we have formed a strong alliance to help our members in technology training, editorial collaborations and much more. New funds into this ecosystem will be vital to strengthening the network of local LGBTQ+ media in this country.”

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