IN THE SUPREME COURT OF THE UNITED STATES. October Term BOLTON CHEMISTS CORPORATION and WALDER MEDICAL SUPPLY, GMBH, Petitioners,

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1 No Team No. 105 IN THE SUPREME COURT OF THE UNITED STATES October Term 2014 BOLTON CHEMISTS CORPORATION and WALDER MEDICAL SUPPLY, GMBH, Petitioners, v. STARKE PHARMACEUTICALS, LTD., Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT BRIEF FOR RESPONDENT Team No. 105 Counsel of Record Attorneys for Respondent

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... iii QUESTIONS PRESENTED... 1 STATEMENT OF THE CASE... 2 STATEMENT OF THE FACTS... 5 ARGUMENT I. INTERMEDIATE SCRUTINY APPLIES TO A PEREMPTORY STRIKE OF AN INDIVIDUAL BASED ON PERCEIVED SEXUAL ORIENTATION BECAUSE SEXUAL ORIENTATION IS A QUASI-SUSPECT CLASS, AND THEREFORE, SUCH A STRIKE CANNOT OVERCOME A BATSON CHALLENGE BECAUSE IT VIOLATES THE EQUAL PROTECTION CLAUSE A. Batson Challenges Apply to Classifications Based on Sexual Orientation B. Under Windsor, Intermediate Scrutiny Is the Appropriate Level of Scrutiny to Analyze the Constitutionality of Peremptory Strikes Based on Sexual Orientation i. This Court's Most Recent Analysis of Equal Protection and Sexual Orientation in United States v. Windsor is Applicable here ii. iii. Gay Individuals Have Historically Been Subject to Discrimination Sexual Orientation Is an Immutable Characteristic that Has No Bearing on Ability to Serve on a Jury iv. Jury Service Is a Fundamental Right C. Applying the Batson Test to This Case, the Peremptory Strike Is Impermissible, and Therefore This Case Should Be Remanded to the District Court i

3 i. Starke Pharma Made a Prima Facie Showing of Discrimination ii. The Defense Does Not Offer a Non-Discriminatory Purpose One Unrelated to Sexual Orientation for Its Peremptory Strike II. AN EFFECT IS DIRECT IF IT FOLLOWS AS A REASONABLY PROXIMATE CAUSAL NEXUS BECAUSE THIS DEFINITION OF DIRECT ADHERES TO LONG-STANDING ANTITRUST CASE LAW, GIVES PURPOSE TO EVERY WORD CONGRESS WROTE INTO THE STATUTE, AND RECOGNIZES THE PROPER REACH OF U.S. ANTITRUST LAWS OVER FOREIGN CONDUCT A. As a Threshold Matter, the FTAIA Is Not a Jurisdictional Limit on the Power of the Federal Courts Because It Sets Forth the Elements of an Antitrust Claim B. The Reasonably Proximate Causal Nexus Definition of Direct Best Comports with the Historical Antitrust Law Definition of Direct Because It Also Focuses on Remoteness C. The Reasonably Proximate Causal Nexus Definition of Direct Recognizes that Congress Purposefully Included Three Requirements: Directness, Substantiality, and Reasonable Foreseeability D. The Reasonably Proximate Causal Nexus Definition of Direct Creates a Test Stringent Enough to Ensure that Only Certain Foreign Conduct Will Qualify Under the FTAIA, While Still Allowing for Flexibility CONCLUSION ii

4 TABLE OF AUTHORITIES UNITED STATES SUPREME COURT CASES Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) Atl. Cleaners & Dyers, Inc. v. United States, 286 U.S. 427 (1932) Batson v. Kentucky, 476 U.S. 79 (1986)... passim Blue Shield of VA. v. McCready, 457 U.S., 465 (1982) Bowen v. Gilliard, 483 U.S. 587 (1987)... 17, 21 Caban v. Mohammed, 441 U.S. 380 (1979) City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985)... 20, 21 Duncan v. Walker, 533 U.S. 167 (2001) Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991) Ex parte Virginia, 10 Otto 339 (1880) F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004) Freeman v. Quicken Loans, Inc., 132 S. Ct (2012) Frontiero v. Richardson, 411 U.S. 677 (1973) Georgia v. McCollum, 505 U.S. 42 (1992) Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) Hernandez v. New York, 500 U.S. 352 (1991) J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)... passim Lawrence v. Texas, 539 U.S. 558 (2003)... 19, 30 Lyng v. Castillo, 477 U.S. 635 (1986) Martin v. Texas, 200 U.S. 316 (1906) Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) Mathews v. Lucas, 427 U.S. 495 (1976) Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010) Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) Nordlinger v. Hahn, 505 U.S. 1 (1992) Perring v. United States, 444 U.S. 37 (1979) Plessy v. Ferguson, 163 U.S. 537 (1896) POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct (2014) Powers v. Ohio, 499 U.S. 400 (1991) iii

5 Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (1992) Rice v. Collins, 546 U.S. 333 (2006) Romer v. Evans, 517 U.S. 620 (1996)... 13, 17 Rose v. Mitchell, 443 U.S. 545 (1979) Rowland v. Mad River Local Sch. Dist., Montgomery Cnty., Ohio, 470 U.S (1985) Sandifer v. U.S. Steel Corp., S. Ct. 870 (2014) Swain v. Alabama, 380 U.S. 202 (1965) U.S. Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993) United States v. Joint-Traffic Ass n, 171 U.S. 505 (1898) United States v. Windsor, 133 S. Ct (2013) UNITED STATES COURT OF APPEALS CASES Animal Sci. Prods., Inc. v. China Minerals Corp., 654 F.3d 462 (3d Cir. 2011) Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014)... 20, Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) Carpet Grp. Int l v. Oriental Rug Imps. Ass n, 227 F.3d 62 (3d Cir. 2002) Den Norske Stats Oljeselskap AS v. Heeremac V.O.F., 241 F.3d 420 (5th Cir. 2001) High Tech Gays v. Def. Indus. Sec. Clearance Office, 909 F.2d 375 (9th Cir. 1990) In re Ins. Antitrust Litig., 938 F.2d 919 (9th Cir. 1991) Lotes Co., Ltd. v. Hon Hai Precision Industry Co., Ltd., 753 F.3d 395 (2d Cir. 2014)... passim McGlinchy v. Shell Chem. Co., 845 F.2d 802 (9th Cir. 1988) Minn-Chem, Inc. v. Agrium Inc., 683 F.3d 845 (7th Cir. 2012)... passim Monsodium Glutamate Antitrust Litig. Inquivosa SA v. Ajinomoto Co., 477 F.3d 535 (2007) SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014)... passim Turicentro, S.A. v. Am. Airlines, Inc., 303 F.3d 293 (3d Cir. 2002) United Phosphorous, Ltd. v. Angus Chem. Co., 332 F.3d 942 (7th Cir. 2003) United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945) United States v. Blackman, 66 F.3d 1572 (11th Cir. 1995) iv

6 United States v. Brown, 352 F.3d 654 (2d Cir. 2003) United States v. Collins, 551 F.3d 914 (9th Cir. 2009) United States v. Hui Hsiung, 758 F.3d 1074 (9th Cir. 2014)... 32, 35 United States v. LSL Biotechnologies, 379 F. 3d 672 (9th Cir. 2004)... passim United States v. Prince, 647 F.3d 1257 (10th Cir. 2011) DISTRICT COURT CASES Filetech S.A. v. France Telecom S.A., 212 F. Supp. 2d 183 (S.D. N.Y. 2001) United States v. Conant, 116 F. Supp. 2d 1015 (E.D. Wis. 2000) STATUTES 1 U.S.C. 7 (1996) U.S.C. 1 (1997)... 31, U.S.C. 6a (1997)... 32, 34 OTHER Don t Ask, Don t Tell Repeal Act of 2010, H.R. 2965, 111th Cong. 2 (2010), 111hr2965enr.pdf HIV Among Gay and Bisexual Men, Center for Disease Control and Prevention, (last updated May 21, 2014) Ian Bartrum, The Ninth Circuit's Treatment of Sexual Orientation: Defining "Rational Basis Review with Bite", 112 Mich. L. Rev. First Impressions 142, (2014) Immutable, Merriam-Webster, (last visited October 20, 2014) Makan Delrahim, Drawing the Boundaries of the Sherman Act: Recent Developments in the Application of the Antitrust Laws to Foreign Conduct, 61 N.Y.U. Ann. Surv. Am. L. 415, 430 (2005)... 34, 40, 42 Terri Kirkpatrick, Gender-Based Peremptory Strikes: J.E.B. v. Alabama Settles the Controversy, 33 U. Louisville J. Fam. L. 143, 144 (1995) v

7 QUESTIONS PRESENTED I. Should this Court employ intermediate scrutiny to determine whether there is a violation of the Equal Protection Clause when a party makes a peremptory strike based on a potential juror s perceived sexual orientation, and that strike cannot overcome a Batson challenge? II. Should the Foreign Trade Antitrust Improvements Act s (FTAIA) term direct be defined as reasonably proximate causal nexus when this interpretation better complies with antitrust jurisprudence and canons of statutory interpretation as well as allows for a flexible enough test to ensure American businesses are protected from foreign anticompetitive conduct without expanding the scope of the Sherman Act? 1

8 STATEMENT OF THE CASE This Court should affirm the holding of the Twelfth Circuit Court of Appeals and remand this case to the District Court of North Westeros for entry of an order consistent with this decision. There are two issues before the Court: (1) whether a peremptory strike based on sexual orientation is unconstitutional under the Equal Protection Clause and (2) whether the term direct in the FTAIA should be defined to mean reasonably proximate causal nexus. As to the first issue, this Court should hold that under intermediate scrutiny, a peremptory strike is unconstitutional when a party uses this strike against a gay individual without offering any nondiscriminatory purpose. With regard to the second issue, this Court should hold that an effect is direct under the FTAIA when it follows as a reasonably proximate causal nexus. Starke Pharmaceuticals (Starke Pharma), the Respondent, is a boutique pharmaceutical company that researches, develops, and sells drugs to treat HIV/AIDS. (R. at 1.) Specifically, Starke Pharma is the creator of the revolutionary drug Rx Sansa, a made-to-order cocktail treatment composed of three different drugs: Drogonox, Rhaegapan, and Viseriol. (R. at 2.) Starke Pharma s primary focus on research and development limits its ability to manufacture Rx Sansa. (Id.) Thus, Starke Pharma relies on outside commercial manufacturing. (Id.) In 2010, Starke Pharma sued two of its foreign commercial manufacturers, Bolton Chemists Corporation (Bolton Chemists) and Walder Medical Supply, GmbH (Walder Medical), in the Federal District Court for the District of North Westeros. (R. at 6.) 2

9 Starke Pharma alleged that Bolton Chemists and Walder Medical engaged in anticompetitive conduct price-fixing in violation of the Sherman Act. (R. at 5-6.) The case was set for jury trial. (R. at 6.) At jury selection, ten jurors were chosen from a twenty-member venire. (Id.) After questioning by U.S. District Court Judge Mary Kate Brennan, the Defense exercised a peremptory strike and removed a potential juror. (R. at 7.) Starke Pharma immediately made a Batson challenge, stating that the Defense s peremptory strike was discriminatory because it was based on the sexual orientation of the potential juror. (Id.) The Defense stated a reason, and the Judge overruled Starke Pharma s objection. (R. at 7-8.) The case proceeded to trial. (R. at 9.) At the close of evidence, the Judge provided the parties with her anticipated charge to the jury. (R. at 8.) The charge instructed that to be governed by U.S. antitrust law, foreign anticompetitive behavior must have a direct, substantial, and reasonably foreseeable effect on commerce in the United States. That means the effect in the United States must follow as an immediate consequence of the defendant s activity. (Id.) Starke Pharma objected to this portion of the jury charge, arguing that the instruction articulated an improperly narrow standard for extraterritorial application of the Sherman Act under the FTAIA (Id.) The court denied the objection and instructed the jury. (Id.) After deliberating, the jury returned a verdict in favor of the Defendants. (Id.) 3

10 Starke Pharma timely moved for judgment as a matter of law pursuant to Federal Rules of Civil Procedure 50. (Id.) Alternatively, Starke Pharma also moved for a new trial under Federal Rules of Civil Procedure 59 on two grounds: (1) that the Court erred when it allowed the Defense to exercise a peremptory strike on the basis of sexual orientation and (2) that the Court erred when it instructed the jury that the Defendants conduct could violate the Sherman Act only if it had immediate consequences in the U.S. (Id.) The Judge denied both motions. (R. at 8-9.) Starke Pharma filed timely notice of appeal to the Twelfth Circuit. (R. at 9.) A panel of judges reversed the District Court s decision and remanded the case to the District Court for an order consistent with its decision. (R. at 9, 23.) Utilizing intermediate scrutiny, the Twelfth Circuit found the Defense s peremptory challenge unconstitutional under the Equal Protection Clause. Additionally, the Twelfth Circuit held that the District Court erred when it instructed the jury that the term direct required that the domestic effect of foreign anticompetitive conduct follow as an immediate consequence. (R. at ) The Twelfth Circuit then instructed that the term direct only required that the domestic effect follow as a reasonably proximate causal nexus. (R. at ) The Defense petitioned for writ of certiorari, which this Court granted. (R. at 9, 37.) 4

11 STATEMENT OF THE FACTS The HIV/AIDS pandemic emerged in the U.S. in 1981 and has continued to ravage the U.S. ever since. (R. at 1.) To date, nearly six hundred thousand Americans have died from AIDS-related complications. (Id.) Estimates indicate that well over one million Americans are HIV positive. (Id.) But, thanks to robust research and development by pharmaceutical companies, the rate of new infections and AIDS-related deaths in the U.S. has slowed. (Id.) Developed by a small group of research scientists, Starke Pharma was one of the first pharmaceutical companies to commit significant resources to HIV/AIDS research. (Id.) Starke Pharma s dedication to research and development led to a major breakthrough in HIV/AIDS treatment: the discovery that HIV/AIDS is most responsive to calibrated combinations of drugs called cocktails. (R. at 2.) Cocktails are combinations of pills that are formulated individually for each patient. (Id.) For years, patients took a multitude of different numbers and combinations of pills. (Id.) This all changed in 1989, when Starke Pharma created the revolutionary drug, Rx Sansa. (Id.) Rx Sansa is a made-to-order cocktail composed of a fixed set of passive ingredients, a stabilizing agent, and three active synthetic drugs: Drogonox, Rhaegapan, and Viseriol. (Id.) Rx Sansa pills are customized for each patient using a ratio of the three active ingredients found to be most effective for an individual. (Id.) To date, Starke Pharma is the only U.S. pharmaceutical company focused solely on HIV/AIDS research and development. (R. at 2.) 5

12 Starke Pharma s primary focus on research and development limits its ability to manufacture Rx Sansa. (Id.) Thus, Starke Pharma relies on outside commercial manufacturing in order to keep its costs low enough that it can continue to fight the HIV/AIDS pandemic. (R. at 2, 5.) Each of the synthetic drugs that make up Rx Sansa is manufactured by a different company: Drogonox is made by Taragon Chemical, Ltd. in Japan, and Rhaegapan is made by Tully Medical Manufacturing Company, Inc. in Canada (R. at 2.) Viseriol is made by two separate facilities: Bolton Chemists in South Korea and Walder Medical in Germany. (R. at 2-3.) These individual ingredients are delivered to Tyrell Manufacturing AB in Sweden, where the ingredients are packaged into custom pills for each Rx Sansa patient. (R. at 3.) Starke Pharma secured patents on all of the three active ingredients in Rx Sansa as well as on the process used to combine the ingredients into the final pill. (Id.) While Starke Pharma s patents were in effect, the company set in motion a number of different strategies to help it remain successful in the market when those patents expired. (R. at 3-4.) Rather than charging the maximum price the market could bear during the patent period as many companies would, Starke Pharma decided to maximize market penetration. (R. at 3.) Thus, Starke Pharma priced Rx Sansa somewhat lower than the estimated maximum market price. (Id.) Starke Pharma reasoned that the increased market recognition gained during the patent term would lead to strong brand loyalty, which would allow Rx Sansa to remain competitive with any generic alternatives that would emerge without drastically cutting prices. (R. at 3-4.) The plan proved moderately successful, and as the end of 6

13 the patent term approached, Starke Pharma predicted that it could reduce the price of Rx Sansa by 5% and still remain profitable in the market. (R. at 4.) Unfortunately, Starke Pharma never had a chance to reduce its pricing. (R. at 4-5.) Before Starke Pharma could lower its pricing, the price of Viseriol the primary active ingredient constituting 40-50% of every Rx Sansa treatment suddenly skyrocketed. (R. at 4.) Due to the massive price increase of its primary ingredient, Starke Pharma could not lower its price of Rx Sansa after the patents expired in (R. at 4-5.) The generic alternatives were able to enter the market at 80% of Rx Sansa s price. (Id.) By the end of 2009, the generic alternatives constituted 30% of all HIV/AIDS cocktails sold in the U.S. (R. at 4.) Just one year later, the generic alternatives increased their market share to almost 50%. (Id.) Dissatisfied with the price of its primary ingredient Viseriol, Starke Pharma began reviewing its supply chain. (R. at 5.) For years, Bolton Chemists and Walder Medical competed for the larger share of Starke Pharma s contract for Viseriol. (Id.) Every year, Starke Pharma would evaluate each companies prices in order to effectively renegotiate its contracts and then set the price for Rx Sansa. (Id.) Starke Pharma s investigation of these two suppliers exposed potential price-fixing between the two. (R. at 5, 6.) Since the two high level executives of both companies had attended a trade conference together in 2008 (one year before the price of Viseriol took a sudden spike in price) their pricing of Viseriol had been consistently identical and rising in unison. (R. at 5.) While this price increase had no impact on 7

14 the generic alternatives who could afford to manufacture Viseriol in-house, it had a devastating effect on Starke Pharma. (Id.) Unlike Starke Pharma and other research and development companies, generic alternatives circumvent the expensive research and development process. (Id.) This allows them to focus exclusively on large-scale, fully integrated manufacturing facilities that create production efficiencies and protect against supply chain instability. (Id.) Research and development companies do not have this option. (Id.) Due to the extremely high costs associated with research and development, brand name companies must outsource their manufacturing. (Id.) Research and development companies who cannot obtain efficient, stable outsourcing cannot afford to continue to research new diseases and develop new treatments. (Id.) Believing that Bolton Chemists and Walder Medical were engaging in an illegal price-fixing scheme, Starke Pharma filed suit in Federal District Court, alleging that Bolton Chemists and Walder Medical s anticompetitive price-fixing violated the Sherman Act. (R. at 6.) The District Court set a date for jury trial. (Id.) During the voir dire for trial, the Judge asked a potential juror whether he had any hobbies, to which the potential juror responded that he loves to sing and that he sings in a church choir and in the Winterfallen Gay Men s Chorus. (Id.) After other questioning, the Judge asked whether the potential juror knew anyone who had contracted HIV/AIDS. (Id.) The potential juror responded that he did not know anyone personally, though in the 1980 s he sat in [a] bar and listened to [his] 8

15 friends talk about people they and lost to the AIDS[,] and further that familiar faces would disappear from the neighborhood, and everyone sort of knew why. (Id.) When the Judge asked whether the potential juror tested HIV positive or whether he currently took or had ever taken a drug manufactured by Starke Pharma, he said no. (R. at 6-7.) Finally, when asked whether he could be impartial and decide the case based on the Judge s instructions and the evidence admitted at trial, the potential juror said yes. (R. at 7.) Neither party asked the potential juror to identify his sexual orientation, and after the Judge offered the opportunity, neither party asked any additional questions. (R. at 6.) The Defense exercised a peremptory strike against the potential juror. (R. at 7.) Starke Pharma asserted a Batson challenge, stating that the Defense s peremptory strike was discriminatory. (Id.) The Defense claimed that its strike was based on the potential juror having extensive exposure to the ravages of the HIV/AIDS in his community. (Id.) The Judge overruled the objection, and empanelled the jury and the case proceeded through trial. (R. at 8.) At the close of evidence, the Judge provided the parties with her anticipated Sherman Act charge to the jury. (Id.) In pertinent part, the charge instructed that, to be governed by U.S. antitrust law, foreign anticompetitive behavior must have a direct, substantial, and reasonably foreseeable effect on commerce in the United States. That means the effect in the United States must follow as an immediate consequence of the defendant s activity. (Id.) Starke Pharma objected to this portion of the jury charge, arguing that the charge articulated an improper standard for extraterritorial application of the Sherman Act under the FTAIA. (Id.) 9

16 The Judge denied the objection, and following the Judge s instruction, the jury returned a verdict in favor of the Defendants. (Id.) 10

17 SUMMARY OF THE ARGUMENT Gay citizens, like all American citizens, have a fundamental right to serve on a jury. While parties may exercise peremptory strikes against potential jurors who appear to have a bias, this Court should not allow peremptory strikes based on sexual orientation. Historically, when gay individuals come out to society, those individuals receive discriminatory, unequal treatment. And as this set of facts illustrates, even when individuals do not come out to society, they may still face discriminatory practices. Sexual orientation, like race and gender, is an immutable characteristic, one that individuals do not choose. Because sexual orientation is a quasi-suspect class, a peremptory strike based on sexual orientation must be evaluated under intermediate scrutiny. Under intermediate scrutiny, the peremptory challenge cannot survive a Batson challenge, because the Defense cannot offer a nondiscriminatory purpose unrelated to sexual orientation. Therefore, the peremptory strike is impermissible. Additionally, in today's global economy, American businesses like Starke Pharma must be able to seek protection from foreign anticompetitive conduct that negatively impacts domestic commerce. There is no question that the Sherman Act should not apply to any and all foreign anticompetitive conduct. The FTAIA makes it clear that only certain conduct conduct that has a direct, substantial, and reasonably foreseeable effect on domestic commerce should be covered under the Sherman Act. Because the FTAIA allows for application of the Sherman Act to anticompetitive foreign conduct, this Court should not hesitate to define the phrase 11

18 direct, substantial, and reasonably foreseeable in a way that gives lower courts the flexibility to consider numerous factors before deciding whether to apply U.S. antitrust laws to foreign conduct. Specifically, interpreting the word direct to mean a reasonably proximate causal nexus gives the lower courts this flexibility while still ensuring that an effect is not too attenuated from its cause. Additionally, interpreting the word direct to mean reasonably proximate causal nexus comports with historical antitrust jurisprudence, and gives meaning and purpose to every word Congress wrote into the statute. Thus, this Court should formally declare that an effect is direct under the FTAIA when it follows as a reasonably proximate causal nexus. 12

19 ARGUMENT This Court should affirm the Twelfth Circuit s holding for two reasons. First, the Twelfth Circuit applied the correct level of scrutiny intermediate scrutiny in evaluating whether a peremptory strike of a potential juror based on sexual orientation, subject to a Batson challenge, violates the Equal Protection Clause. Second, the Twelfth Circuit correctly recognized that the District Court s jury instruction articulated an improperly narrow definition of the term direct and instead defined direct to mean a reasonably proximate causal nexus. This Court reviews de novo the treatment of the District Court s application of the law in its denial of motions for judgment as a matter of law and motions for a new trial. (R. at 23.) (citing United States v. Collins, 551 F.3d 914, 919 (9th Cir. 2009)). I. INTERMEDIATE SCRUTINY APPLIES TO A PEREMPTORY STRIKE OF AN INDIVIDUAL BASED ON PERCEIVED SEXUAL ORIENTATION BECAUSE SEXUAL ORIENTATION IS A QUASI- SUSPECT CLASS, AND THEREFORE, SUCH A STRIKE CANNOT OVERCOME A BATSON CHALLENGE BECAUSE IT VIOLATES THE EQUAL PROTECTION CLAUSE. The Equal Protection Clause of the Fourteenth Amendment promises American citizens protection under the Constitution that neither knows nor tolerates classes among the citizens, and ensures a law s neutrality where rights of persons are at stake. Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)). This protection extends far and wide, including into the courtroom during jury selection. Batson v. Kentucky, 476 U.S. 79, 85 (1991). During jury selection, individuals are protected from purposefully discriminatory peremptory strikes. Id. at 96. For example, a 13

20 party cannot make a peremptory strike for a race-based reason, id. at 98, or genderbased reason, J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146 (1994). A peremptory strike must be based on a non-discriminatory purpose. Batson, 476 U.S. at 98. If a non-striking party believes that a peremptory strike is based on a discriminatory reason, the non-striking party can make a Batson challenge. See generally Batson, 476 U.S. at (outlining the elements of a Batson challenge). This Court should find that sexual orientation deserves intermediate scrutiny and thus, protection from peremptory strikes. A. Batson Challenges Apply to Classifications Based on Sexual Orientation. The ability to make peremptory strikes of potential jurors is not a right. Georgia v. McCollum, 505 U.S. 42, 57 (1992). Rather, peremptory strikes are statecreated means to the constitutional end of an impartial jury and a fair trial. Id. If a party makes a potentially discriminatory peremptory strike, the other party may challenge the strike through a Batson objection. Batson, 476 U.S. at 94. Courts must overrule peremptory strikes when made for a discriminatory purpose. Id. A peremptory strike, which is available in both criminal and civil trials, Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 631 (1991), normally occurs when a party strikes a potential juror without a showing of cause. See Terri Kirkpatrick, Gender-Based Peremptory Strikes: J.E.B. v. Alabama Settles the Controversy, 33 U. Louisville J. Fam. L. 143, 144 (1995). As the Supreme Court has stated, [t]he function of the challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before... will decide [the 14

21 case] on the basis of the evidence placed before them, and not otherwise. Swain v. Alabama, 380 U.S. 202, 219 (1965) overruled by Batson, 476 U.S. at 79. Although, a peremptory strike is an important trial tool, one based on a discriminatory purpose, like race or gender, is unconstitutional under the Equal Protection Clause. See Batson, 476 U.S. at 100; J.E.B., 511 U.S. at 146. This Court must now determine whether to extend that protection to sexual orientation. To challenge the constitutionality of a peremptory strike under the Equal Protection Clause, a party may make a Batson challenge. See Batson, 476 U.S. at 94. In Batson v. Kentucky, 476 U.S. 79, (1986), a party made peremptory strikes of all four Black people in the venire. However, parties have a right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria. Id. (citing Martin v. Texas, 200 U.S. 316, 321 (1906); Ex parte Virginia, 10 Otto 339, 345 (1880)). The Batson Court stated that parties cannot challenge jurors on the assumption or his intuitive judgment that [the jurors] would be partial to the defendant because of their shared race. Id. at 97. The Batson Court remanded the case to determine whether there was in fact discrimination after establishing a three-part analysis for assessing whether a strike is unconstitutional. Id. at Under Batson, a peremptory challenge is found impermissible when (1) the party challenging the strike establishes a prima facie case of intentional discrimination; (2) the striking party fails to state a neutral explanation for its strike; and (3) the trial court determines that the party challenging the strike has established purposeful discrimination. Id. Regarding the second factor, the 15

22 explanation must be a comprehensible reason, and cannot be inherently discriminatory. Rice v. Collins, 546 U.S. 333, 338 (2006). For example, striking a Black individual cannot be done for a race-based reason, like that a juror and a criminal defendant are the same race. Batson, 476 U.S. at 93, Similarly, for gender, a reason must be based on a juror characteristic other than gender.... J.E.B., 511 U.S. at 145. Here, because sexual orientation is a quasi-suspect class as discussed below, Batson challenges protect individuals from peremptory strikes based on sexual orientation. See SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 486 (9th Cir. 2014) (holding that intermediate scrutiny applies to sexual orientation, and that Batson protects peremptory strikes based on sexual orientation); cf. United States v. Blaylock, 421 F.3d 758, 769 (8th Cir. 2005) (doubting that Batson extends to sexual orientation). B. Under Windsor, Intermediate Scrutiny Is the Appropriate Level of Scrutiny to Analyze the Constitutionality of Peremptory Strikes Based on Sexual Orientation. Courts employ three different levels of scrutiny when determining whether a law or policy is unconstitutional under the Equal Protection Clause: rational basis review, intermediate scrutiny, and strict scrutiny. See Ian Bartrum, The Ninth Circuit's Treatment of Sexual Orientation: Defining "Rational Basis Review with Bite", 112 Mich. L. Rev. First Impressions 142, (2014). Strict scrutiny is not at issue here. Rather, this Court must determine that between rational basis review and intermediate scrutiny, intermediate scrutiny is applicable because sexual orientation constitutes a quasi-suspect classification. 16

23 Intermediate scrutiny is appropriate when there is a quasi-suspect class. See Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 325 (1976). When intermediate scrutiny applies to a Batson challenge, the striking party must state a reason unrelated to the quasi-suspect classification. See, e.g., J.E.B., 511 U.S. at 145. A group of people constitutes a quasi-suspect class deserving of intermediate scrutiny when the group (1) has suffered a history of discrimination; (2) exhibits obvious, immutable or distinguishing characteristics that define it as a discrete group; and (3) has shown that it is a minority or politically powerless, or alternatively that the statute or policy at issue directly or substantially interferes with a fundamental right. Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (quoting Lyng v. Castillo, 477 U.S. 635, 638 (1986); Murgia, 427 U.S. at ; Zablocki v. Redhail, 434 U.S. 374, , n.12 (1978)). Rational basis review applies when there is no quasi-suspect class. Romer, 517 U.S. at 631. Under rational basis review, a law or policy will be overturned if there is no rational reason for the law or policy in question, or if the law or policy jeopardizes exercise of a fundamental right or categorizes on the basis of an inherently suspect characteristic. Id.; Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). Laws and policies normally pass rational basis review, as almost any reason is acceptable. Nordlinger, 505 U.S. at 15 (stating that the Equal Protection Clause does not demand that the legislature actually articulate a purpose or rational, just that the Court must be able to conceive a purpose). 17

24 Sexual orientation calls for intermediate scrutiny. The Supreme Court s analysis in United States v. Windsor, 133 S. Ct (2013), illustrates that sexual orientation warrants intermediate scrutiny. Further, gay individuals fall under a quasi-suspect class, because they have been historically subjected to discrimination based on an immutable characteristic, their sexual orientation, that has no bearing on their ability to contribute to society, and, here, their fundamental right to jury service has been compromised. Thus, this Court should apply intermediate scrutiny to analyze the constitutionality of a peremptory strike based on sexual orientation. i. This Court s Most Recent Analysis of Equal Protection and Sexual Orientation in United States v. Windsor Is Applicable Here. In United States v. Windsor, the Supreme Court discretely used intermediate scrutiny to find Section III of the Defense of Marriage Act ( DOMA ), defining marriage as a legal union between one man and one woman, unconstitutional. 133 S. Ct. at ; 1 U.S.C. 7 (1996), repealed by Windsor, 133 S. Ct. at The Court did not announce the level of scrutiny it used to determine the sexual orientation-related issue of whether DOMA violated the Due Process Clause or the Equal Protection Clause. Id. Instead, the Court focused its analysis on the purpose of DOMA, which the Court said was to create a stigma or impose a disadvantage on a class of people, legally married same-sex couples. Id. at The Court invalidated the statute, finding that no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, 18

25 sought to protect in personhood and dignity. Id. In reliance on the Supreme Court s decision, this Court should employ intermediate scrutiny to sexual orientation. Two circuits, the Second and the Ninth specifically, invoke intermediate scrutiny for classifications of sexual orientation. See Windsor v. United States, 699 F.3d 169, 181 (2d Cir. 2012), aff'd, 133 S. Ct (2013); SmithKline, 740 F.3d at 484. In SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, (9th Cir. 2014), the Ninth Circuit applied intermediate scrutiny to classifications based on sexual orientation, grounding its holding in Windsor and Lawrence v. Texas, 539 U.S. 558 (2003). The SmithKline court relied on many factors in holding that the Windsor Court applied intermediate scrutiny: (1) the Court did not consider possible rational bases for DOMA; (2) the Court evaluated the essence of DOMA, looking to its design, purpose, and effect; (3) the Court did not base its inquiry on hypothetical reasons for DOMA s enactment; (4) the Court looked to Congressional purpose to justify disparate treatment; (5) the Court showed concern for the public message sent by DOMA; (6) the Court showed little discretion in favor of DOMA; and finally, (7) the Court relied on intermediate scrutiny cases. Id. at Those factors illustrate that the Windsor Court applied intermediate scrutiny. This Court should follow SmithKline and conclude that the Supreme Court effectively applied intermediate scrutiny to sexual orientation. Even if this Court concludes that Windsor did not clearly articulate the level of scrutiny that should apply, this Court should still hold that intermediate scrutiny is appropriate because sexual orientation is a quasi-suspect class. 19

26 ii. Gay Individuals Have Historically Been Subject to Discrimination. A quasi-suspect class is one that has historically suffered from purposeful unequal treatment. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 438 (1985). Gay individuals have experienced tremendous historical discrimination, legally and socially. See Rowland v. Mad River Local Sch. Dist., Montgomery Cnty., Ohio, 470 U.S. 1009, 1014 (1985) (Brennan, J., dissent to denial of writ of certorari) (explaining his request for the Supreme Court to find homosexuals a suspect class, stating that homosexuals have historically been the object of pernicious and sustained hostility.... ); Ben-Shalom v. Marsh, 881 F.2d 454, 465 (7th Cir. 1989) ( homosexuals have suffered a history of discrimination and still do.... ). In a recent case from the Seventh Circuit, Judge Richard Posner summarized this discriminatory history: [H]omosexuals had, as homosexuals, no rights; homosexual sex was criminal (though rarely prosecuted); homosexuals were formally banned from the armed forces and many other types of government work (though again enforcement was sporadic); and there were no laws prohibiting employment discrimination against homosexuals. [ ] Although discrimination against homosexuals has diminished greatly, it remains widespread. Baskin v. Bogan, 766 F.3d 648, 665 (7th Cir. 2014). Despite this history of discrimination against gay individuals, Congress has been slow to enact legislation protecting the rights of gay individuals. A class who has been discriminated against but receives protection from discrimination through legislation likely does not fulfill the quasi-suspect class factor of historical discrimination. Cleburne Living Center, 473 U.S. at 450. In City 20

27 of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 450 (1985), the Supreme Court held that mentally disabled individuals were not a quasi-suspect class. The Court made this determination in part because although society has discriminated against mentally disabled individuals, lawmakers have been addressing [the difficulties of mentally disabled individuals] in a manner that belies a continuing antipathy or prejudice and a corresponding need for more intrusive oversight by the judiciary. Id. at 443. Thus, even if a class was subject to discrimination in the past, when Congress has protected a class from discrimination, the class likely does not fulfill the quasi-suspect class factor of historical discrimination. Regarding sexual orientation, only recently have gay individuals received protection through legislation, like the Don t Ask Don t Tell Repeal Act of 2010 passed by Congress. Don t Ask, Don t Tell Repeal Act of 2010, H.R. 2965, 111th Cong. 2 (2010), hr2965enr/pdf/BILLS-111hr2965enr.pdf. Sexual orientation satisfies the first prong of the quasi-suspect class analysis because openly gay individuals, as well as those perceived to be gay, have suffered from discrimination throughout history. iii. Sexual Orientation Is an Immutable Characteristic that Has No Bearing on Ability to Serve on a Jury. To constitute a quasi-suspect class, gay individuals must have obvious, immutable, or distinguishing characteristics that define it as a discrete group. Bowen, 483 U.S. at 602 (quoting Murgia, 427 U.S. at ). The Merriam-Webster Dictionary defines immutable as not capable of or susceptible to change. Immutable, Merriam-Webster, 21

28 webster.com/dictionary/immutable (last visited October 20, 2014). The Supreme Court showed a similar understanding of the term when it stated that gender is an immutable characteristic determined solely by the accident of birth[,] as opposed to an individual s choice. Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion). Like gender, sexual orientation is an immutable characteristic individuals do not choose who they are attracted to their sexuality. Baskin v. Bogan, 766 F.3d 648, 658 (7th Cir. 2014) (stating that homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation... is a source of continuing pain to the homosexual community. ); Nabozny v. Podlesny, 92 F.3d 446, 457 n.10 (7th Cir. 1996) (stating that it does seem dubious to suggest that someone would choose to be homosexual, absent some genetic predisposition, given the considerable discrimination leveled against homosexuals. ); High Tech Gays v. Def. Indus. Sec. Clearance Office, 909 F.2d 375, 377 (9th Cir. 1990) (Canby, J., dissenting from denial of rehearing en banc) (explaining that for practical and constitutional purposes, then, homosexuality is an immutable characteristic... [discrimination against homosexuals] is discriminating against persons because of what they are, through no choice of their own, and what they are unable to change ). Sexual orientation bears no relation to ability to perform or contribute to society. Cleburne Living Ctr., 473 U.S. at 441 (citing Frontiero, 411 U.S. at

29 (plurality opinion) (discussing gender as a suspect class)). Whether someone is gay or straight does not determine whether that individual will be able to review the facts of a case in an unbiased way. SmithKline, 740 F.3d at 485. Allowing a peremptory strike based on sexual orientation specifically gay sexual orientation tells society that gay individuals cannot be trusted to reason fairly on issues of great import to the community or the nation. Id. at 486. And that is unacceptable. Visibility is not required for immutability. See generally Mathews v. Lucas, 427 U.S. 495, (1976) (holding that illegitimacy is a non-visible yet immutable characteristic). For example, in Mathews v. Lucas, 427 U.S. 495, 516 (1976), the Supreme Court has held that individuals born illegitimately out of wedlock constitute a suspect class. And the only instance where the Supreme Court spoke of both immutability and visibility together was when it noted that gender is visible and immutable.... Caban v. Mohammed, 441 U.S. 380, 398 (1979) (emphasis added). The Supreme Court was not using visibility and immutability interchangeably. Rather, the two words are distinct adjectives that described gender in Caban v. Mohammed, 441 U.S. 380, 398 (1979). Although unlike race or gender, sexual orientation is not always visible, it is still an immutable characteristic, present and deserving of protection. Baskin, 766 F.3d at 657 (stating that there is little doubt that sexual orientation... is an immutable and probably an innate, in the sense of in-born) characteristic rather than a choice ). Because 23

30 sexual orientation is an immutable characteristic, albeit not visible, it fulfills the second prong of the quasi-suspect classification analysis. iv. Jury Service Is a Fundamental Right. A peremptory strike based on a quasi-suspect classification like sexual orientation stifles the right of American citizens to be a part of the democratic system. See J.E.B., 511 U.S. at 145. As the Supreme Court stated in Powers v. Ohio, 499 U.S. 400, 407 (1991), with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process. But see United States v. Conant, 116 F. Supp. 2d 1015, 1022 (E.D. Wis. 2000) (holding that jury service is not a fundamental right). Although courts like the District Court in United States v. Conant, 115 F. Supp. 2d 1015, 1022 (E.D. Wis. 2000), have held that jury service is not a fundamental right, they base their holding on the fact that individuals have been excluded in the past. However, previous exclusion from a fundamental right, like jury service, does not make the right non-fundamental. Rather, as the Supreme Court recognized in Powers, wrongful exclusion of a juror by a [discriminatory] peremptory challenge is a constitutional violation committed in open court U.S. at 412. Excluding individuals from jury service based on an immutable characteristic harms not only the individual, but also litigants and the community. J.E.B., 511 U.S. at 140. Like peremptory strikes based on race or gender, peremptory strikes based on sexual orientation ratify and reinforce prejudicial views on the relative abilities of gay individuals. Id. Discriminatory peremptory strikes cast doubt on 24

31 the integrity of the judicial process, and place[ ] the fairness of [court] proceeding[s] in doubt. Powers, 499 U.S. at 411 (citations omitted) (quoting Rose v. Mitchell, 443 U.S. 545, 556 (1979)). Striking a juror based on sexual orientation clearly places a substantial burden on an individual s right to participate in the democratic system. Because of the harm caused by discriminatory peremptory strikes based on an immutable characteristic like sexual orientation, intermediate scrutiny should be applied to sexual orientation. Thus, the Court should find the peremptory strike here violated the Equal Protection Clause. C. Applying the Batson Test to This Case, the Peremptory Strike Is Impermissible, and Therefore This Case Should Be Remanded to the District Court. After determining Batson s application to a specific discriminatory purpose and the appropriate level of scrutiny, a court can then evaluate the Batson challenge. Batson, 476 U.S. at Courts must overturn a peremptory strike if (1) the party challenging the strike establishes a prima facie case of intentional discrimination; (2) the striking party fails to state a neutral explanation for its strike; and (3) the trial court determines that the party challenging the strike has established purposeful discrimination. Id. i. Starke Pharma Made a Prima Facie Showing of Discrimination. A party brings a proper Batson challenge by first making a prima facie showing of discrimination. Batson, 476 U.S. at 96. This is done by showing that (1) the prospective juror is a member of a cognizable group; (2) a party made a peremptory strike against the prospective juror; and (3) the totality of the 25

32 circumstances raise an inference that the strike was motivated by the characteristic in question. Id.; SmithKline, 740 F.3d at 476; United States v. Blackman, 66 F.3d 1572, 1575 (11th Cir. 1995). Peremptory strikes cannot survive intermediate scrutiny unless they substantial[ly] aid... a litigant s effort to secure a fair and impartial jury. J.E.B., 511 U.S. at 137. In J.E.B., the Supreme Court found that peremptory strikes of all male potential jurors were unconstitutional. Id. at There, the party making the peremptory strikes stated that men might be more sympathetic to a father in a paternity action, whereas women might be more sympathetic to the mother. Id. at 138. The Court held that it would not accept as a defense to gender-based peremptory challenges the very stereotype the law condemns. Id. (citing Powers, 499 U.S. at 410). Here, Starke Pharma made a prima facie case of discrimination. First, the potential juror in question was a member of a cognizable group gay individuals because the Defense perceived him to be gay. (R. at 7.) Second, the Defense likely struck the potential juror who the Defense perceived to be gay because of the relationship between the gay community and HIV/AIDS. (Id.) But, as the Supreme Court explained in J.E.B. when it considered men serving on a jury in a paternity action, a party cannot exercise a peremptory strike on an individual solely because he is part of a class who is affected by an issue in the case. Further, the peremptory strike in this case does not substantially aid the Defense s effort to secure a fair and impartial jury. Rather, it does the opposite by removing the only individual 26

33 perceived to be gay in the venire in an attempt to stack the jury in favor of the Defendants. A gay man, like a man that is a potential juror for a paternity case, can be impartial in a case related to HIV/AIDS, even if gay men are more severely affected by HIV/AIDS than any other group in the U.S. HIV Among Gay and Bisexual Men, Center for Disease Control and Prevention, /facts/index.html (last updated May 21, 2014). A gay man listening to a case about HIV/AIDS is not automatically biased and unable to make an impartial decision based on the facts. Here, the facts of this case raise an inference that the Defense struck the potential juror based on his affiliation with a group, which is a discriminatory purpose barred by the Equal Protection Clause. An individual may be constitutionally struck from the venire for his beliefs, which are distinguishable from an individual s affiliation in a group. United States v. Prince, 647 F.3d 1257, 1261 (10th Cir. 2011). In United States v. Prince, 647 F.3d 1257, 1261 (10th Cir. 2011), the Tenth Circuit held that a party may exercise a peremptory strike against a potential juror for that juror s beliefs about the legalization of marijuana. The Court explained that a potential juror s views could introduce bias or impair impartiality. Id. at Because sexual orientation is a status rather than a belief, a peremptory strike against an individual based on his sexual orientation is impermissible. This case would be different if the potential juror stated that he had strong beliefs about HIV/AIDS. But, the potential juror did not speak about his beliefs, nor did he speak on any other connection to HIV/AIDS 27

34 other than attenuated experiences with people who had experience with HIV/AIDS. (R. at 6-7.) Similarly, a party may strike a potential juror based on activities that promote a certain belief. See United States v. Brown, 352 F.3d 654, 669 (2d Cir. 2003). For example, in United States v. Brown, 352 F.3d 654, 669 (2d Cir. 2003), the Second Circuit held that striking a potential juror based on his activities does not implicate the constitution in the same way as striking someone based off of his affiliation in a group or identity. The striking party in Brown eliminated a potential juror who stated during voir dire that she was a member of a specific church, and that she was very active in her church. Id. at The court noted that the striking party might well have thought that [her activities] would likely increase [her] sympathy for people in distress.... Id. at 670. Thus, the strike was constitutional. Id. According to Brown, under the facts of this case, if the potential juror stated that he supports or dedicates his time to HIV/AIDS, the Defense could have constitutionally struck the juror because his activities illustrate a possible bias or inability to be impartial to both parties. But, that is not what occurred here. Here, the potential juror did not partake in any activities related to HIV/AIDS, was never diagnosed with HIV/AIDS, nor personally knew anyone who died from HIV/AIDS. (R. at 6, 7.) Yet, the Defense struck the juror, and when asked his answer, stretched the potential juror s response about how he remember[ed] the 80s, sitting in the bar and listening to my friends talk about people they had lost to AIDS. I didn t lose anyone close to me to AIDS I mean. But during the 80s and 90s, familiar faces 28