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    Ninth Circuit Orders Heightened Scrutiny For Sexual Orientation Bias

    By Ann Rostow

    Our legal fight for marriage equality has exploded into dozens of state and federal cases, far too many for even the most organized GLBT reporter to track. As for me, I have been accustomed to juggling all our big lawsuits in my head, an easy trick back in the day when we had two or three major cases at any one time. Now, well, I am doing my best.

    As I write, however, the most important legal news is an obvious pick. No, it’s not the federal opinion legalizing marriage in Utah. It’s not the federal marriage ruling in our favor out of Oklahoma. Indeed, it’s not even a marriage ruling at all. It’s a decision out of the U.S. Court of Appeals for the Ninth Circuit, written by our old friend Stephen Reinhardt, author of the weird Prop 8 opinion that was subsequently voided by the High Court on a technicality.

    In this case, Reinhardt and his two (Democratically appointed) panelists ruled that gay men and women cannot be summarily dropped from a jury because of sexual orientation. The High Court has already made it clear in two separate opinions that lawyers may not exclude jury candidates due to race or gender. Now, sexual orientation is added to the list on the left coast.

    Well, that’s nice. But for many of us, it’s like the gays in the military debate. We don’t want to be excluded from anything on principle. But we’re not exactly doing backflips in order to join the army or spend a couple of weeks reporting for jury duty. But forget jury duty. The significance of the opinion lies in the reasoning. Here, Reinhardt rules that courts examining cases of gay bias must put the burden of proof on the alleged offender, applying heightened legal scrutiny to the circumstances at issue. His decision rewrites the legal handbook to our advantage throughout the western United States.

    If it stands, and is not reviewed and overturned by the full Ninth Circuit or the Supreme Court, we will win the marriage case against Nevada now pending in the Ninth Circuit. Almost automatically.

    Whither Windsor?

    And now, let’s talk briefly about the importance of legal reasoning. It’s normal to see a headline and skip the details. “Court Rules for Gay Couples.” Yay!!!! On to the sports page, where we can pore over the minute details of Kansas basketball.

    But the real news is always in the details. Victory is important. But did Kansas win in a blowout? Or did their star player break a kneecap while the team fumbled its way to a one-point edge? What does the future hold?

    A couple of years ago, as I mentioned, Judge Reinholdt wrote the opinion that struck California’s Prop 8 on appeal from Judge Walker’s court. And yet, our legal allies were baffled. The opinion never really grappled with the underlying question of marriage equality. Nor did it deal with the level of scrutiny that should be applied to equal protection cases involving sexual orientation. Arguably, it did not even leave a mark on gay rights jurisprudence. Instead, Reinhardt wrote that a state may not remove constitutional rights from a specific group of people, a guideline that could apply just as easily to dog walkers as gay people, and one which had nothing to do with marriage.

    We had been hoping for a big juice gay rights precedent from a federal appellate court, and we got a dry saltine. Analysts thought Reinhardt might have written this nondescript opinion in order to keep the case from exploding in our gay faces at a higher court. But whatever his motive, his ruling managed to kill Prop 8 without advancing the ball in our direction.

    Now Judge Reinhardt has delivered the goods. But he has done so in a context that hardly ripples the waters in the mainstreams of society. Jury duty? Who cares! Marriage? Now, despite our progress, that’s still a difficult subject, to say the least. It’s hard to avoid the conclusion that Judge Reinhardt is a strategist at heart, looking ahead to the repercussions of his opinions and the end game of a civil rights movement that he clearly supports. He is not called the liberal lion of the Ninth Circuit for nothing.

    Judge Reinhardt did something more. Instead of wading through the usual analysis that governs a debate on heightened scrutiny, Reinhardt examined Justice Kennedy’s opaque opinion in Windsor, and determined that, even though Kennedy did not come right out and announce that sexual orientation deserved special consideration by the courts (an announcement that would have generated shockwaves throughout the legal system), Kennedy’s approach to last June’s DOMA case nonetheless implied that heightened scrutiny was in effect.

    If other courts pick up on Reinhardt’s reasoning, our victory against the Defense of Marriage Act would carry over to any and all cases of gay bias that reach the federal courts. Did I mention that we now have dozens of federal marriage cases in the pipeline?

    That said, Justice Kennedy has always managed to rule in our favor without actually spelling out the type of hard legal reasoning that would force future courts to follow suit. At first blush, it looked as if Lawrence v Texas would do for gay rights what Roe v Wade did for abortion rights. But, indeed, it proved fairly easy for conservative courts to sidestep Lawrence, as they did with Kennedy’s other gay rights decision, Romer v Evans.

    When Kennedy delivered yet another vaguely reasoned gay rights decision last summer, I personally was afraid that, once again, the opinion was going to be up for grabs. Liberal courts would use Windsor to uphold our rights. Conservative courts would note that no special scrutiny was ordered, and nowhere did Kennedy dictate how states would define marriage.

    And yet, this hasn’t been the case. Courts in Ohio, Utah, Oklahoma and elsewhere have gone out of their way to interpret Windsor as broadly as possible. Now, the Ninth Circuit joins the party, delivering what might be one of the most significant gay rights rulings in history to date. Justice Kennedy may have hedged his bets with his semantic legerdemain all these years. But when you hold his rulings up to the light, the story they tell is becoming explicit.

    Circuit Party

    So what now? It seems as if every state is now embroiled in a marriage equality contest. Pennsylvania has no less than seven active lawsuits. The National Center for Lesbian Rights has just filed in Florida. There are two in Texas. There are cases in Virginia, Tennessee, North Carolina, Oregon, Idaho, Michigan—you get the picture.

    Indeed, rather than track cases by state, it may be more useful at this point to track them by federal appellate district. Our most important battles are arguably now being waged in federal court, so while it would be nice to see marriage equality spread through another state supreme court ruling, the critical decisions will be coming from the federal bench.

    At present, we have a case pending in the Ninth Circuit: the previously mentioned lawsuit against the state of Nevada that has been trudging along in a tedious fashion for a couple of years. Then, we have the Utah case, which has been fast tracked at the Tenth Circuit. Since Oklahoma is also under the jurisdiction of the Tenth Circuit, those cases may be combined. Will that slow down the litigation? We’ll see.

    In Ohio, we have a marriage recognition case now proceeding to the Sixth Circuit. That case involved a somewhat narrow question of whether or not the state was obliged to list a same-sex spouse on a death certificate. But, obviously, the issue on appeal will be whether or not the Buckeye State can ignore the general marital rights of those who wed outside Ohio borders.

    There are 12 federal appellate courts, which are one rung down from the Supreme Court, and each of those courts makes binding law for all states in their jurisdiction. (That’s why Judge Reinhardt’s gay rights ruling was so important. It will become law for seven western states, plus Alaska and Hawaii.)

    Marriage is already legal throughout the First and Second Circuits, with the exception of Puerto Rico, and the District of Columbia circuit is also a free marriage area. So that leaves six other appellate circuits where marriage litigation might appear.

    You can certainly single out the “good” circuits and the “bad” ones. But, in truth, it’s something of a crapshoot. Three-judge panels are selected by lot so, in theory, we could end up with two or three conservative judges even in a court dominated by Democratic appointees and vice versa. That said, a panel decision can be reviewed by the entire bench of any circuit court so, for example, were we somehow to win a marriage case in the Fifth Circuit, the full bench would slap us back into our corner in a heartbeat.

    Check out the Wikipedia entries for the various courts to count the number of Democratic or Republican appointees. And keep in mind that Reagan and Bush One picks are not necessarily all that bad.

    San Fran on the Small Screen

    Is it wrong to pass judgment on a TV show that you’ve never watched or a book you’ve never read? Of course not! That’s why I have no problem deciding not to watch the new HBO show, “Looking.” From what I’ve read, the show is a bore, and trades solely on the hackneyed notion that gay men are just like everyone else, looking for love in all the wrong places and trying to live an average American life. Yawn.

    That said, if I still lived in San Francisco, I’d probably watch it just out of hometown pride and satisfaction. I stopped watching The Mentalist for a long time because I got sick of Red John. Now, the show is based in Austin, where I live, and I’m back, if only to see my own skyline and city streets.

    One pet peeve about The Mentalist: When they were based in Sacramento, they were always flitting down to LA or up to the Napa Valley, only to be back in their office a few hours later. Hello? It’s a six-hour drive to LA, and they weren’t seen in an airport. Now I watch them hop over from Austin to Corpus Christie (four hours), get someone, interrogate them at headquarters (another four hours), and continue their beachfront investigation the next day. Ditto Houston, about two and a half hours by car. C’mon writers. A little realism.

    Looking For A Topic

    I was just surfing for a good short item to end this column, when I noticed a sidebar titled “25 Most Common Passwords.” The top password was “123456,” and the second most common was “password.” First of all, it’s the 21st century people. You have to do a little better than that. Second, how does anyone know what the most common passwords might be in the first place? Disturbing.

    So, I was torn between Putin (saying Russia must discourage homosexuality in order to keep birthrates up) and the Bachelor (saying homosexuals are more perverted than others and, in essence, give him the creeps). But then I stumbled onto yet another review of “Looking,” in which a gay guy slams Esquire because a straight guy wrote that “Looking” was dull.

    Interesting! My impression of “Looking” was based on a New York Times piece by Alessandra Stanley and another report on Slate by J. Bryan Lowder, who is gay. Both of them trashed the show for lack of interesting content, and although Stanley isn’t gay, I trust her judgment implicitly. So, without reading Esquire, I’m inclined to agree with the straight guy and charge the gay guy with reverse homophobia, the tendency to assume that a gay show or idea or comment must be worthy and that criticism of said show or idea or comment must show bias.

    I have decided to watch the show and read the Esquire review so we can pursue this topic in future columns. Oh, and I went to early grade school with Alessandra Stanley, whose father gave me a dollar when I lost my tooth during an overnight visit. That was huge back then. I’ve never forgotten it.