The 9th Circuit let stand its January decision that potential jurors may not be blocked from selection simply because they are gay, in an antitrust case over HIV medication pricing.
The full court was asked to reconsider the opinion that constitutional equal protection rights prohibit lawyers from using peremptory strikes to cut potential jurors based on sexual orientation. In an order issued Tuesday, a majority of the 29 judges refused to grant en banc review of the opinion, with three dissenting votes.
In dissent, Judge Diarmuid O’Scannlain wrote, “The opinion’s unprecedented application of heightened scrutiny to a peremptory strike of a juror who was perceived to be gay bears significant implications for the same-sex marriage debate and for other laws that may give rise to distinctions based on sexual orientation.” He was joined by Judges Jay Bybee and Carlos Bea.
He pointed out the 9th U.S. Circuit Court of Appeals is the first among the circuits to declare that equal protection requires the restriction since the U.S. Supreme Court ruled last year in the Windsor case giving a lesbian widow inheritance rights.
The order leaves the U.S. Supreme as the last chance to change the ruling, if it is appealed.
The dispute began during jury selection in a 2011 antitrust trial in which Abbott Labs used a peremptory challenge to remove a juror who disclosed he had a male partner.
The opposing lawyer from Glaxo SmithKline Beecham objected, arguing it was impermissible to bar a potential juror based on sexual orientation. The trial judge rejected the challenge.
Glaxo sued Abbott Labs claiming antitrust, contract violations and unfair trade practice in a licensing agreement and pricing of HIV medication, which raised considerable controversy in the gay community.
“Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals,” wrote Judge Stephen Reinhardt for the panel.
In an odd twist, the potential juror in the case said he worked for the 9th Circuit. He said he was a computer technician in San Francisco and revealed during questioning that his “partner” studied economics and investments. During follow-up questions, the prospective juror referred to his partner three times as “he” and said he had friends with HIV. But the juror also said he had no knowledge of the medications, Norvir, Kaletra and Lexiva, which were subject of the antitrust trial.
Abbott’s attorney struck the juror and the Glaxo attorney immediately objected because it appeared to be based on the juror’s apparent homosexuality.
Existing case law already bars exclusion of jurors based on race, ethnicity or gender. When a minority juror is struck the lawyer must explain the non-discriminatory basis for striking the juror.
At the end of a four-week trial, the jury returned a mixed verdict. It favored Abbott on the antitrust claim and sided with Glaxo on the contract claims. It awarded $3.4 million in damages to Glaxo.
Abbott appealed the contract verdict. Glaxo also appealed seeking a new trial.
Judge Stephen Reinhardt applied the U.S. Supreme Court’s 2013 precedent in Windsor, which struck down the portion of the Defense of Marriage Act that discriminated in the tax treatment of a widowed lesbian. He said Windsor “requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.”
Case January opinion: Glaxo SmithKline Beecham v. Abbott Laboratories, No. 11-17357
Tuesday’s order, here.