How a Single Gay Juror Brought Down Nevada’s Same-Sex Marriage Ban

[boston bean]

How did a complex case about peremptory jury strikes lead a Republican governor to give up on his state’s constitutional ban against gay marriage? The legal path is rocky and strange—and also fairly amusing. Here’s a sketch of the chain of events.

While Abbott prepared to litigate its dismissal of a gay juror last summer, the Supreme Court issued a case you may have heard of: U.S. v. Windsor. In Windsor, the court overturned the Defense of Marriage Act, holding that it “violates basic due process and equal protection principles” of the Constitution. Although the court irritatingly refused to clarify its precise rationale, many commentators believed that the justices had granted gays heightened constitutional protections, similar to the type that women are afforded.

Before Abbott’s gay juror case went to trial, the 9th Circuit asked the company’s attorneys to explain Windsor’s affect on its arguments. This was bad news for Abbott. Any reasonable observer could see that Windsor changed the game, elevating legal protections for gays to an unprecedented extent. The Supreme Court has already ruled that blacks and women cannot be pre-emptively struck from a jury on the basis of their race or gender, as both jurors and defendants must be protected from racism, sexism, and “historical prejudice.” Shouldn’t the same logic now apply to gay jurors, in order to shield them from similar bigotry and “historical prejudice”?

The 9th Circuit said yes—and then some. In a profoundly bold and trailblazing opinion, Judge Stephen Reinhardt waved aside Abbott’s arguments, holding that allowing strikes based on “preconceived notions of the identities, preferences, and biases” of gay people would perpetuate the “history of exclusion of gays and lesbians from democratic institutions.” And he didn’t stop there: This exclusion, Reinhardt wrote, was unacceptable in light of Windsor because:

In its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review. … In short, Windsor requires heightened scrutiny.

http://www.slate.com/blogs/outward/2014/02/11/nevada_gay_marriage_ban_how_a_single_gay_juror_brought_it_down.html

[enlightenment]

1. Good riddance to bad rubbish.

Horrific amendment - getting rid of it is long overdue.