Windsor's Ripples of Equality

A unanimous three-judge panel of the Ninth Circuit issued a ruling yesterday showing how the Supreme Court's Windsor case (DOMA) is helping to bring greater equality, even in areas unrelated to marriage equality.

The court ruled that a lawyer cannot peremptorily "strike" (remove from the jury pool without giving a reason) a potential juror based on their sexual orientation. But in reaching that conclusion, the Ninth Circuit concluded that any government classification based on sexual orientation triggers heightened scrutiny for Equal Protection analysis. This is a departure from Ninth Circuit precedent, which had previously applied only the lowest level "rational basis" scrutiny.

But that was before Windsor. The panel concluded that while the Supreme Court didn't explicitly address the appropriate level of scrutiny for anti-gay laws in the DOMA case, it in fact applied heightened scrutiny.

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. In short, Windsor requires heightened scrutiny. Our earlier cases applying rational basis review to classifications based on sexual orientation cannot be reconciled with Windsor. Because we are bound by controlling, higher authority, we now hold that Windsor's heightened scrutiny applies to classifications based on sexual orientation. [internal quotations and citations removed]

The panel discussed the types of discrimination faced by gay and lesbians during our nation's history:

In the first half of the twentieth century, public attention was preoccupied with homosexual "infiltration" of the federal government. Gays and lesbians were dismissed from civilian employment in the federal government at a rate of sixty per month. Discrimination in employment was not limited to the federal government; local and state governments also excluded homosexuals, and professional licensing boards often revoked licenses on account of homosexuality. ... Indeed, gays and lesbians were thought to be so contrary to our conception of citizenship that they were made inadmissible under a provision of our immigration laws that required the Immigration and Naturalization Service (INS) to exclude individuals "afflicted with psychopathic personality." It was not until 1990 that the INS ceased to interpret that category as including gays and lesbians. It is only recently that gay men and women gained the right to be open about their sexuality in the course of their military service. As one scholar put it, throughout the twentieth century, gays and lesbians were the "anticitizen." [internal citations removed]

Indeed, today's Right Wing is dedicated to the idea that gays and lesbians are outsiders to our society. But most Americans know better, and so did five Supreme Court Justices in Windsor.

As the Ninth Circuit decision shows, the impact of Windsor continues to grow, and not just in the area of marriage equality.

PFAW Foundation