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Ninth Circuit: Jurors Can't Be Excluded Based On Sexual Orientation

The Ninth Circuit federal court of appeals ruled on Tuesday that lawyers cannot exclude potential jurors on the basis of sexual orientation. The ruling, which arrived after the court heard an appeal involving the barring of a gay juror in an HIV medication case, reads in part:

This appeal’s central question is whether equal protection prohibits discrimination based on sexual orientation in jury selection. We must first decide whether classifications based on sexual orientation are subject to a standard higher than rational basis review. We hold that such classifications are subject to heightened scrutiny. We also hold that equal protection prohibits peremptory strikes based on sexual orientation and remand for a new trial.

BuzzFeed's Chris Geidner explains why today's ruling may have broader implications outside of the appeal the federal court heard:

The 9th Circuit Court of Appeals, in a unanimous decision, held that discrimination based on sexual orientation is subject to heightened scrutiny — a decision the court concluded has been made in action, though not in word, by the Supreme Court itself.

In describing the reason for applying the new standard, Judge Stephen Reinhardt examined the Supreme Court’s June decision in Edith Windsor’s case challenging the Defense of Marriage Act. Although equal protection claims brought based on sexual orientation have previously been judged under the lowest level of review, called rational basis, the 9th Circuit held that a higher standard now applies.

Of course we'll have to wait and see the scope of precedent set by today's ruling, but according to experts, anti-gay discrimination may have a more challenging time holding up in court!