Behind the Venire: Rationale, Rewards and Ramifications of Heightened Scrutiny and the Ninth Circuit’s Extension of Equal Protection to Gays and Lesbians During Jury Selection in SmithKline v. Abbott

Abstract

On January 21, 2014, in SmithKline v. Abbott, the U.S. Court of Appeals for the Ninth Circuit held that heightened scrutiny applies to classifications based on sexual orientation, and equal protection forbids striking jurors because they are gay or lesbian. The Ninth Circuit interpreted the Supreme Court’s recent analysis in United States v. Windsor as applying heightened scrutiny, rather than rational basis review that has historically been used to assess issues surrounding sexual orientation. The Ninth Circuit also reasoned that given the historical exclusion and pervasive discrimination of gays and lesbians, this group requires equal protection. This Comment argues that while this ruling in theory represents a victory for equal rights, the practical effects could prove minimal and even potentially problematic.