Supreme Court of the United States

Transcription

1 Team No. 107 Docket No IN THE Supreme Court of the United States OCTOBER TERM 2014 BOLTON 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 Attorneys for Respondent

2 QUESTIONS PRESENTED I. Whether homosexuals are a protected class meriting heightened scrutiny for purposes of an Equal Protection analysis and a Batson analysis when Petitioners struck a juror whose answers implied that he was homosexual. II. Whether foreign conduct need only have a reasonably proximate causal nexus to render foreign actors liable under the Sherman Act, as modified by the Foreign Trade Antitrust Improvements Act, when Petitioners colluded to fix the price of a product that was shipped through Sweden to the United States. i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... v OPINIONS BELOW... xi CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES... xii STATEMENT OF THE CASE... 1 I. FACTUAL BACKGROUND... 1 II. PROCEEDINGS BELOW... 5 SUMMARY OF THE ARGUMENT... 7 ARGUMENT I. CLASSIFICATIONS ON THE BASIS OF SEXUAL ORIENTATION MERIT HEIGHTENED SCRUTINY SUCH THAT STRIKING A JUROR BECAUSE OF PRESUMED HOMOSEXUALITY VIOLATES THE EQUAL PROTECTION CLAUSE AND FAILS THE BATSON TEST A. Homosexuals Satisfy All Four Factors That The Supreme Court Analyzes To Determine Whether A Class Merits Heightened Scrutiny Under The Equal Protection Clause Homosexuals merit heightened scrutiny under an Equal Protection analysis because they have historically been the targets of state-sanctioned discrimination Homosexuals merit heightened scrutiny under an Equal Protection analysis because their shared characteristic bears no relationship to their ability to contribute to society Homosexuals merit heightened scrutiny under an Equal Protection analysis because they exhibit a ii

4 distinguishing characteristic defining them as a discrete group Homosexuals merit heightened scrutiny under an Equal Protection analysis because judicial intervention is necessary to ensure equality in the execution of the laws B. The Supreme Court s 2013 Ruling In United States v. Windsor Implies That Heightened Scrutiny Should Be Utilized When Evaluating Homosexuals Under The Equal Protection Clause C. The Mere Presence Of Collateral Issues, Implicit In Cases Involving Homosexuals, Should Not Dissuade This Court From Applying Heightened Scrutiny II. PLAIN TEXT, CONGRESSIONAL INTENT, AND PUBLIC POLICY CONSIDERATIONS MANDATE THE USE OF A REASONABLY PROXIMATE CAUSAL NEXUS TEST AS THE CAUSAL STANDARD FOR ACTIONS BROUGHT UNDER THE FOREIGN TRADE ANTITRUST IMPROVEMENT ACT ( FTAIA ) A. Petitioners Proposed Immediate Cause Test Would Contravene A Plain Language Reading Of The FTAIA And Create A Stricter Test Than The FTAIA Could Bear The Plain Language interpretation of direct, substantial, and reasonably foreseeable cannot support an immediate consequences test without nullifying words in the FTAIA The District Court relied impermissibly on the definition of direct proffered in the Foreign Sovereign Immunities Act ( FSIA ), creating a stricter test than the plain language of the statute intended B. Congressional Intent Supports The Reasonably Proximate Causal Nexus Test Because The Sherman Act Applied Extraterritorially From Its Inception, While The FTAIA s Stated Goal Was Simply To Clarify Judicial And Department Of Justice Causal Tests iii

5 1. The FTAIA was enacted to clarify current judicial and Department of Justice tests rather than create an entirely new test i. The Seventh and Second Circuits in Minn- Chem and Lotes, respectively, correctly interpreted the causal test that the FTAIA demands C. In Order To Protect American Consumers And Corporations From Anticompetitive Behavior Spillover To The American Economy Public Policy Considerations Demand That The Sherman Act Have A Broad Reach The immediate consequence test does not adequately address anticompetitive spillover effect The immediate consequence test would unduly limit DOJ enforcement capabilities resulting in more extensive global anticompetitive practices CONCLUSION iv

6 CONSTITUTIONAL PROVISIONS TABLE OF AUTHORITIES U.S. Const. amend. XIV FEDERAL STATUTES 1 U.S.C.A , 19 7 U.S.C. 2012(e) U.S.C.A U.S.C. 1 et seq U.S.C. 6a... 26, 27, 29, U.S.C.A et seq , 30 Pub. L UNITED STATES SUPREME COURT CASES Batson v. Kentucky, 476 U.S. 79 (1986)... 10, 11 Bowen v. Gilliard, 483 U.S. 587 (1987)... 12, 13, 16 Bowers v. Hardwick, 478 U.S. 186 (1986)... 13, 14 Caban v. Mohammed, 441 U.S. 380 (1979) California v. ARC Am. Corp. 490 U.S. 93 (1989)... 36, 37 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)... 26, 35, 38 City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432 (1985)... 12, 13, 15, 17 v

7 Dep t of Agriculture v. Moreno, 413 U.S. 528 (1973) Duncan v. Walker, 533 U.S. 167 (2001) Edmonson v. Leesville Concrete, 500 U.S. 614 (1991) F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004)... 27, 31 Fed. Commc n Comm n v. Beach Commc ns, Inc., 508 U.S. 307 (1993) Frontiero v. Richardson, 411 U.S. 677 (1973)... 13, 14, 15, 18 Graham v. Richardson, 403 U.S. 365 (1971)... 14, 17 Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993) J.E.B. v. Alabama ex rel T.B., 511 U.S. 127 (1994)... 11, 20 Johnson v. California, 543 U.S. 499 ( King v. Smith, 392 U.S. 309 (1968) Korematsu v. United States, 323 U.S. 214 (1944) Lalli v. Lalli, 439 U.S. 259 (1978) Lawrence v. Texas, 539 U.S. 558 (2003)... 13, 22, 23 vi

8 Loving v. Virginia, 388 U.S. 1 (1967) Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976)... 13, 17 Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) Orr v. Orr, 440 U.S. 268 (1979) Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007) Powers v. Ohio, 499 U.S. 400 (1991) Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (1992) Romer v. Evans, 517 U.S. 620 (1996)... 22, 23 Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) Thomsen v. Cayser, 243 U.S. 66 (1917) Trimble v. Gordon, 430 U.S. 762 (1977) TRW Inc. v. Andrews, 534 U.S. 19 (2001) United States v. Carolene Products Co., 304 U.S. 144 (1938) United States v. Pacific & A R & Nav Co, 228 U.S. 87 (1913) United States v. Sisal Sales Corp., 274 U.S. 268 (1927) vii

9 United States v. Virginia, 518 U.S. 515 (1996) United States v. Windsor, 133 S.Ct (2013)... passim United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980) Williamson v. Lee Optical, 348 U.S. 483 (1955) UNITED STATES COURTS OF APPEALS CASES Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014) Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) High Tech Gays v. Defense Industrial Security Clearance Office, 909 F.2d 375 (9th Cir. 1990)... 16, 17, 21 Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) Kitchen v. Herbert, 2014 WL (10th Cir. 2014) Latta v. Otter, 2014 WL (9th Cir. 2014) Lotes Co. Ltd. v Hon Hai Precision Indus. Co., 753 F.3d 395 (2nd Cir. 2014)... passim Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012)... passim Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997) viii

10 SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014)... passim United States v. Aluminum Co. of America, 148 F.2d 416 (2nd Cir. 1945) United States v. LSL Biotechnologies, 379 F.3d 672 (9th Cir. 2004) Windsor v. United States, 699 F.3d 169 (2nd Cir. 2012)... 11, 12 Witt v. Dep t of the Air Force, 527 F.3d 806 (9th Cir. 2008) HOUSE REPORTS H. Rep (1982)... 26, 33 H. Rep (I) (1982)... 31, 33 H. Rep (1982)... 31, 32, 33, 36 FEDERAL AGENCY GUIDELINES ANTITRUST DIV., U.S. DEP T OF JUSTICE, ANTITRUST GUIDE FOR INTERNATIONAL OPERATIONS (REV. ED. MARCH 1, 1977)... 32, 33, 37 STATE STATUTES West s Fla.S.A (3)... 14, 18 STATE SUPREME COURT CASES In re Marriage Cases, 183 P.3d 384 (Cal. 2008)... 15, 19 Kerrigan v. Comm r of Pub. Health, 957 A.2d 407 (Conn. 2008)... 15, 16 Varnum v. Brien, 763 N.W.2d. 862 (Iowa 2009) ix

11 STATE COURTS OF APPEAL CASES Florida Dep t of Children and Families v. Adoption of X.X.G., 45 So.3d 79 (Fla.App.3d Dist. 2010) SCHOLARLY AUTHORITY Jeremy C. Lowe, Homosexual Discrimination and Government Employment: Shahar v. Bowers The Government Employer s Shield of Public Animosity, Wash. U. J. Urb. & Contemp. L. 191, 192 (Winter 2008) OTHER Webster s Third New Int l Dictionary 640 (1981) x

12 OPINIONS BELOW After a jury trial resulting in a verdict for Petitioners, the United States District Court for the District of North Westeros issued a memorandum and order on November 9, 2012, denying Respondent s Motions for Judgment as a Matter of Law, or in the alternative, a Motion for a New Trial. (R. at 16, 22.) On appeal, the Twelfth Circuit reversed and remanded the District Court s decision as to both claims. (R. at 32, 36.) xi

13 CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES This case involves the Equal Protection clause of the Fourteenth Amendment to the United States Constitution. U.S. Const. amend XIV 1. Additionally, this case involves the Federal Trade Antitrust Improvements Act. 15 U.S.C. 6a. The full text of each of the listed provisions is contained in the Appendix. xii

14 STATEMENT OF THE CASE I. FACTUAL BACKGROUND Starke Pharmaceuticals Ltd. ( Starke or Respondent ), a boutique pharmaceutical company incorporated in the state of North Westeros, United States, has developed and sold drugs for HIV/AIDS treatment since its founding in (R. at 1 2.) As one of the first pharmaceutical laboratories to focus solely on HIV/AIDS research, Respondent simplified the complex combinations of pills for HIV/AIDS into one customized pill, called Rx Sansa ( Sansa ). (R. at 1 2.) Sansa is composed of passive ingredients, stabilizing agents, and three active ingredients Drogonox, Rhaegapan, and Viseriol. (R. at 2.) Each Sansa pill contains a ratio of active ingredients customized for that individual. (R. at 2.) Respondent outsources the manufacturing of Sansa to Targeron Chemical, Ltd., in Japan, which makes Drogonox, and to Tully Medical Manufacturing Company, Inc., in Canada, which manufactures Rhaegapan. (R. at 2.) Viseriol, which constitutes 40% 50% of every pill, is manufactured by Bolton Chemists Corporation ( Bolton ) in South Korea and Walder Medical Supply, GmbH ( Walder ; together with Bolton, Petitioners ) in Germany. (R. at 2 3.) All three ingredients are packaged into each patient s custom Sansa pill by Tyrell Manufacturing AB ( Tyrell ) in Sweden. (R. at 3.) Respondent applied for patents on Drogonox, Rhaegapan, and Viseriol, as well as on the process used to combine the ingredients into a stable pill. (R. at 3.) These patents (together, the Sansa Patents ) were issued in 1990 for a twenty year term. (R. at 3.) Instead of pricing Sansa at the maximum market price, Respondent 1

15 focused on market penetration by keeping the price low. (R. at 3 4.) This method, Respondent predicted, would yield increased sales volume to compensate for the lower market price so that Respondent could cut the price of Sansa by up to ten percent in the first two years after the patent expired. (R. at 3 4.) Early market research showed that customers would pay a ten percent premium for a drug with certain market recognition. (R. at 3 4). Respondent s strategy did create a modest increase in sales during the patent term, but did not result in the expected revenue. (R. at 4.) In 2009 two generic versions of Sansa entered the market, Rx Aryalite and Rx Rickontin ( Aryalite and Rickontin, respectively; collectively, the Generics ) at 80% of Sansa s market price. (R. at 4.) Before Respondents could reduce the price of Sansa by five percent, as planned, the cost of Viseriol suddenly spiked. (R. at 4.) Because Viseriol is the primary active ingredient in Sansa, Respondent was unable to lower their price in the first year post-patent expiration. (R. at 4-5.) The Generics were unaffected by the Viseriol price increase as they manufactured all drugs in house. (R. at 5.) In 2009, the Generics sold at 80% of the price of Sansa, and they constituted 30% of all HIV/AIDS cocktails in the United States. (R. at 5.) In 2010, Respondent was able to bring Sansa within 115% of the price of the Generics by reducing their price by five percent, but by the end of the year the Generics comprised 46% of the HIV/AIDS cocktail market. (R. at 5.) Both Viseriol suppliers, Petitioners, had been competing for larger shares of Starke s annual contracts for years. (R. at 5.) After Bolton and Walder attended the 2

16 same conference in St. Lucia in 2008, however, Starke noted that both companies were increasing their prices in lockstep. (R. at 4 5.) In January 2010, Respondent sued Petitioners in the Federal District Court for the District of North Westeros for antitrust violations under the Sherman Act. (R. at 6.) The parties set a jury trial for May (R. at 6.) The judge led voir dire questioning and counsel for each party asked additional questions. (R. at 6.) The judge asked Panel Member #10 a series of questions. (R. at 6.) She first inquired as to his hobbies, to which he responded that he sings in a church choir and in the Winterfallen Gay Men s Chorus. (R. at 6.) The Court then asked whether he knew anyone who had contracted HIV/AIDS. (R. at 6.) Panel Member #10 responded that he personally did not, but that he remembered sitting in a bar in the 80 s listening to my friends talk about people they had lost to AIDS. (R. at 6.) He explained further that he had not lost any close acquaintances, but that during the 80s and 90s, familiar faces would disappear from the neighborhood, and everyone sort of knew why. (R. at 6.) When asked whether he personally ever tested HIV positive Panel Member #10 said no. (R. at 6.) He further revealed that he had never taken any drugs manufactured by Respondent. (R. at 6 7.) Finally, the Court asked whether he would be impartial if selected to serve on the jury, to which he replied Yes, ma am. (R. at 7.) Although Panel Member #10 was never directly asked his sexual orientation, counsel for Respondent claimed that he reasonably led all parties to believe he was gay. (R. at 7.) Thus, when Petitioners exercised a peremptory strike against Panel 3

17 Member #10, Respondent immediately initiated a Batson challenge alleging discrimination based on his apparent homosexuality. (R. at 7.) In response, Petitioners alleged that Panel Member #10 s answers did not explicitly reveal that he was homosexual. (R. at 7.) Furthermore, they argued that the nondiscriminatory reason for the strike was his admitted ties to a community of HIV/AIDS victims. (R. at 7.) The Petitioners concluded that [i]t s eminently reasonable to wonder whether that sort of life experience might influence his deliberations. (R. at 7.) Although Petitioners went on to state that Panel Member #10 was the only homosexual juror they tried to strike, Respondent pointed out that he was the only juror member the Court had reason to believe is homosexual. (R. at 7 8). Ultimately the Court overruled the objection to the strike because the defense had a reasonable concern about #10 s possible bias. (R. at 8.) A jury was empanelled and the trial proceeded. (R. at 8.) After evidence concluded the Court gave Counsel its anticipated jury instructions. (R. at 8.) These included the charge that in order for foreign anticompetitive behavior to be governed by U.S. antitrust law it must have a direct, substantial, and reasonably foreseeable effect on U.S. commerce, as measured by an immediate consequence test. (R. at 8.) Respondent s counsel filed a written objection to the jury charge alleging that it was an improperly narrow definition of the standard for extraterritorial application of the Sherman Act, as governed by the Foreign Trade Antitrust Improvements Act. (R. at 8.) The Court denied the objection and gave the 4

18 jury the original instructions. (R. at 8.) The jury was sent to deliberate, and two hours later held Petitioners not liable in their verdict. (R. at 8.) II. PROCEEDINGS BELOW At the end of the trial Respondent moved for Judgment as a Matter of Law pursuant to the Federal Rules of Civil Procedure ( FRCP ) 50 or, in the alternative, a Motion for a New Trial pursuant to FRCP 59. (R. at 11.) The District Court denied both motions. (R. at 22.) First, the District Court held that the Equal Protection Clause does not require the application of heightened scrutiny to classifications on the basis of sexual orientation; therefore, peremptory strikes on that basis were permissible. (R. at ) The Court held that Respondent carried its prima facie burden under the Batson test, and that Petitioners had a non-discriminatory reason for the strike. (R. at 12.) Using rational basis review, the District Court found no basis to overturn its determination at trial that Defendants were within their right to strike Panel Member #10. (R. at 15.) Second, the District Court held that the jury was properly instructed as to the standard for the extraterritorial application of U.S. antitrust law, reasoning that the effects test was a question on the merits and not a question of subjectmatter jurisdiction. (R. at 18.) Next, the District Court held that a direct effect on American commerce must follow as an immediate consequence of the foreign anticompetitive activity; any broader test would prove unwieldy. (R. at 19 21). The Twelfth Circuit reversed the district court s decision and remanded the case back to the District Court for entry of an order consistent with its decision. (R. 5

19 at 36). In addressing Respondent s Batson challenge, the Twelfth Circuit determined that heightened scrutiny must be used for classifications based on sexual orientation, as there was a long-lasting history of pervasive discrimination, implication of a fundamental right, and equal protection precedent for heightened scrutiny. (R. at 32). Thus, the Twelfth Circuit held that heightened scrutiny applied to the case and striking Panel Member #10 violated his Equal Protection rights. (R. at 32). In addressing the second claim, the Twelfth Circuit determined that the district court erred when it used the immediate consequence test. (R. at 33). The Court determined that congressional intent supports the interpretation of direct in the FTAIA to require a reasonably proximate causal nexus. (R. at 35). Petitioners filed a writ of certiorari to the Supreme Court of the United States, which this Court granted. (R. at 37). 6

20 SUMMARY OF THE ARGUMENT I. This Court should hold that homosexuals are a protected class merit heightened scrutiny for Equal Protection purposes. The Supreme Court has traditionally considered four factors when evaluating a class for equal protection status. Homosexuals satisfy all four factors: they have long been the targets of state-sanctioned discrimination; their shared characteristic their attraction to people of the same sex has no bearing on their ability to contribute to society; like illegitimate children they have a distinguishing characteristic that identifies them as a discrete group; finally, homosexuals are a political minority who often rely on judicial intervention for the just execution of this nation s laws. For all these reasons, this Court should hold that homosexuals are a protected class deserving of heightened scrutiny. Independently, United States v. Windsor demands heightened scrutiny for classifications on the basis of sexual orientation. Though it did not explicitly state what level of scrutiny it employed, the Supreme Court s analysis in Windsor is fundamentally incompatible with rational basis scrutiny. In Windsor, the Court found fault with Congress s actual motives in passing the Defense of Marriage Act ( DOMA ) and declined to accept any of the five rationales offered to it. Further the Court relied on three main substantive precedents, two of which applied heightened scrutiny, suggesting that the Court applied more than mere rational basis in Windsor. 7

21 Both the Supreme Court s four-part test and its prior decision in Windsor demonstrate that this Court should apply heightened scrutiny to classifications based on sexual orientation. This heightened scrutiny would also govern Batson challenges. As homosexuals merit protected class status, and peremptory strikes of jurors who belong to such classes violate the Equal Protection clause under Batson, this Court should rule that overruling Respondent s challenge was improper, and a new trial must be granted. II. This Court should also reverse and remand for a new trial because the district court improperly instructed the jury as to the proper causal test. The Foreign Trade Antitrust Improvement Act ( FTAIA ), governs this claim. The FTAIA uses the modifiers direct, substantial, and reasonably foreseeable to describe the effect that foreign anticompetitive behavior must have on American commerce in order to be actionable under the Sherman Act. The correct analysis balances all three modifiers and leads to the Twelfth Circuit s conclusion: that a reasonably proximate causal nexus must be established. The term direct does not nullify the other two; rather, it addresses the traditional concern about remoteness. Congressional intent, also, calls for a reasonably proximate causal nexus, rather than the immediate consequence test that Petitioners advocate. The house reports accompanying the FTAIA reveal that Congress intended to relieve Sherman Act liability only for American corporations engaged in export trade. Congress never 8

22 intended to relieve importers from liability, nor wholly foreign trading that had a spillover effect on American commerce. Finally, public policy supports a broad, reasonably proximate causal nexus test for liability under the Sherman Act, as modified by the FTAIA. In a global economy, American citizens should not suffer economically from the fact that the overseas producers of their products can restrain competition to increase prices. Further, the Department of Justice, whose interpretations merit deference, aligns itself with the reasonably proximate causal nexus test, rather than the immediate consequence test. Finally, the reasonably proximate causal nexus test does not threaten international comity; the actions complained of here, as with most cases, violate such basic free trade provisions that no surprise or unfairness arises. Public policy, therefore, supports the reasonably proximate causal nexus test. The FTAIA s phrase direct, substantial, and reasonably foreseeable should be interpreted to demand a reasonably proximate causal nexus between the foreign behavior complained of and its effect on American commerce. The text of the statute supports this interpretation, Congress intended this interpretation, and public policy supports it. This Court should agree with the Twelfth Circuit and hold that a reasonably proximate causal nexus is the proper test. 9

23 ARGUMENT I. CLASSIFICATIONS ON THE BASIS OF SEXUAL ORIENTATION MERIT HEIGHTENED SCRUTINY SUCH THAT STRIKING A JUROR BECAUSE OF PRESUMED HOMOSEXUALITY VIOLATES THE EQUAL PROTECTION CLAUSE AND FAILS THE BATSON TEST. As the Twelfth Circuit correctly held, under the Equal Protection Clause of the Fourteenth Amendment, classifications based on a person s sexual orientation merit heightened scrutiny, such that striking a juror based on homosexuality violates Equal Protection under Batson v. Kentucky. U.S. Const. amend. XIV 1; Batson v. Kentucky, 476 U.S. 79, (1986). In Batson, the Supreme Court held that the Equal Protection Clause forbids a prosecutor from exercising peremptory strikes against potential jurors solely on account of their race. Batson, 476 U.S. at (1986). Batson held that a defendant could make a prima facie showing of an Equal Protection violation by demonstrating 1) that he and a juror were members of the same racial group, 2) that that juror was struck, and 3) that the facts and circumstances gave rise to an inference of discrimination. Id. at 96. The Court further elaborated that relevant circumstances, such as the pattern of questioning during voir dire, could give rise to an inference of discrimination. Id. at 97. This prima facie case would shift the burden to the prosecutor to give a race neutral explanation for striking the juror. Id. If the prosecutor gave such an explanation, the trial court would determine whether the defendant had established purposeful discrimination. Id. at 98. Within eight years, the Court extended the Batson principle to civil trials in Edmonson v. Leesville Concrete, 500 U.S. 614, 616 (1991), to strikes on the basis of 10

24 gender in J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, 129 (1994), and to racially motivated strikes regardless of whether the jurors and the defendant were of the same race in Powers v. Ohio, 499 U.S. 400 (1991). J.E.B. also established that peremptory strikes may be exercised against any class of jurors which would normally be subject to rational basis scrutiny. J.E.B., 511 U.S. at 143. In this case, Petitioners struck Panel Member #10 after he admitted to singing in the Winterfallen Gay Men s Chorus, and stated that familiar faces would disappear from [his] neighborhood during the AIDS crisis of the 1980s and 1990s responses that reasonably led all parties to believe he was homosexual. (R. at 6 8.) Petitioners contend that this strike was constitutional under Batson, because homosexuals are subject to only rational basis scrutiny and Petitioners had a non-discriminatory reason for the strike. (R. at 7 8.) Homosexuals, however, satisfy every prerequisite to protected class status, and the Supreme Court s decision in United States v. Windsor demands more than rational basis scrutiny for sexual orientation classifications. United States v. Windsor, 133 S.Ct (2013). For these reasons, homosexuals merit heightened scrutiny under the Equal Protection Clause of the Fourteenth Amendment. A. Homosexuals Satisfy All Four Factors That The Supreme Court Analyzes To Determine Whether A Class Merits Heightened Scrutiny Under The Equal Protection Clause. Generally, the Supreme Court analyzes four factors to determine whether a class merits heightened scrutiny under an Equal Protection analysis. Windsor v. United States, 699 F.3d 169 (2nd Cir. 2012). Homosexuals satisfy all four factors. The Supreme Court first noted in 1938 that prejudice against discrete and insular 11

25 minorities may require correspondingly more searching judicial inquiry into discriminatory practices against them. United States v. Carolene Products Co., 304 U.S. 144, 154, n. 4 (1938). In the seventy-five years since, the Court has frequently analyzed which groups qualify as protected classes, such that legislation that facially discriminates against them receives heightened scrutiny. See, e.g., Korematsu v. United States, 323 U.S. 214, 216 (1944) (applying strict scrutiny to racial classification); Trimble v. Gordon, 430 U.S. 762 (1977) (applying heightened scrutiny to legitimacy classification). Four chief factors have come to inform this analysis: whether the class has been historically subject to discrimination, Bowen v. Gilliard, 483 U.S. 587, 602 (1987); whether the class shares a characteristic that bears a relation to their ability to contribute to society, City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, (1985); whether the class exhibits obvious, immutable, or distinguishing characteristics that define them as a discrete group, Bowen, 483 U.S. at 602; and whether the class is a minority or politically powerless, Id. As the Second Circuit reasoned in Windsor v. United States, 699 F.3d 169, 185 (2nd Cir. 2012), homosexuals satisfy all four factors and receive heightened scrutiny for Equal Protection purposes. 1. Homosexuals merit heightened scrutiny under an Equal Protection analysis because they have historically been the targets of state-sanctioned discrimination. Homosexuals, as a class, merit heightened scrutiny under an Equal Protection analysis because they have been the targets of state-sanctioned discrimination. A finding of historical discrimination has supported heightened 12

26 scrutiny for protected classes in many Supreme Court decisions. See, e.g., Frontiero v. Richardson, 411 U.S. 677, 684 (1973) ( There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. ) (plurality opinion of Brennan, J.); King v. Smith, 392 U.S. 309, (1968) (noting that welfare laws that denied benefits to children whose mothers began cohabitating with other men were habitually used to disguise systematic racial discrimination, and invalidating such a law for that reason). Conversely, when a class of persons has not historically been the target of discrimination, the Court has generally concluded that those individuals do not constitute a protected class for Equal Protection purposes. See, e.g., Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (denying heightened scrutiny for certain family members of welfare recipients falling outside the nuclear family); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, (1976) (declining to recognize the elderly as a protected class, in part because of the lack of historical discrimination against them). The Court has employed heightened scrutiny in these cases because rational basis scrutiny might uphold laws motivated by antagonism and antipathy. Cleburne, 473 U.S. at 440. It is clear that America has a long history of discrimination against homosexuals. Most prominently, state statutes forbidding homosexuals from consensual sexual contact remained constitutional until Lawrence v. Texas, 539 U.S. 558, (2003). In fact, their constitutionality had been explicitly affirmed as recently as 1986, in Bowers v. Hardwick, 478 U.S. 186, 192 (1986). Concurring in Bowers, Chief Justice Burger wrote that, the proscriptions against 13

27 sodomy have very ancient roots. Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Id. at 196 (Burger, C.J., concurring). The federal government has barred homosexuals from serving openly in the military. Don t Ask, Don t Tell, a military policy effective until 2010, permitted homosexuals to serve on the condition that they deny or never reveal their sexual orientation. 10 U.S.C.A 654 (1993), repealed by Pub. L Of course, states have also discriminated by, inter alia, prohibiting homosexuals from adopting. West s F.S.A (3), held unconstitutional by Florida Dep t of Children and Families v. Adoption of X.X.G., 45 So.3d 79 (Fla.App.3d Dist. 2010). Recent legal developments may obscure this history, but it is instructive to remember that as recently as 1961, all fifty states had outlawed sodomy. Bowers, 478 U.S. at These prohibitions more than meet the level of historical discrimination necessary to consider a group a protected class. 2. Homosexuals merit heightened scrutiny under an Equal Protection analysis because their shared characteristic bears no relationship to their ability to contribute to society. Homosexuals shared characteristic their sexual attraction to people of the same sex bears no relationship on their ability to contribute to society, and for that reason they merit heightened scrutiny under an Equal Protection analysis. Graham v. Richardson, 403 U.S. 365, 376 (1971) (holding aliens contributions to a state as a reason to analyze distinctions by alienage under heightened scrutiny); Frontiero, 411 U.S. at 676 (1973) (plurality opinion of Brennan, J.). The Supreme 14

28 Court has repeatedly noted that when a class s shared characteristic bears no relationship on their ability to contribute to society, the government has no legitimate interest in drawing distinctions that discriminate against that characteristic. Frontiero, 411 U.S. at (1973) (plurality opinion of Brennan, J.). For example, in Frontiero, the Court held that one s gender frequently bears no relation to ability to perform or contribute to society. Id. at 686. Conversely, the Supreme Court uses only rational basis scrutiny when a class s shared characteristic does affect their ability to contribute to society. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, (1985) (holding that rational basis review should apply to the developmentally disabled because it allows the government the flexibility needed to create policies to assist those with disabilities). In regards to their ability to contribute to society, homosexuals clearly fall within the same categorization as women under the Equal Protection clause. The Supreme Court has never entertained a serious challenge to this notion. The Iowa Supreme Court, however, noted that [N]one of the same-sex marriage decisions from other state courts around the nation have found a person s sexual orientation to be indicative of the person s general ability to contribute to society. Varnum v. Brien, 763 N.W.2d. 862, 890 (Iowa 2009); see also In re Marriage Cases, 183 P.3d 384, 443 (Cal. 2008) (holding that the most important factors in deciding whether a characteristic should be considered a constitutionally suspect basis for classification are whether society now recognizes that the characteristic in question generally bears no relationship to the individual's ability to perform or contribute to society. ); 15

29 Kerrigan v. Comm r of Pub. Health, 957 A.2d 407, (Conn. 2008) (collecting cases). Since one s sexual orientation bears no relationship on one s ability to contribute to society, the government has no legitimate interest in facial differentiations by sexual orientation. Accordingly, homosexuals merit protected class status under an Equal Protection analysis. 3. Homosexuals merit heightened scrutiny under an Equal Protection analysis because they exhibit a distinguishing characteristic defining them as a discrete group. Homosexuals merit heightened scrutiny under an Equal Protection analysis as they exhibit a distinguishing characteristic, specifically their sexual orientation. Bowen, 483 U.S. at 602 (1987). A distinguishing characteristic need not have a physical manifestation. Lalli v. Lalli, 439 U.S. 259, 265 (1978) (demanding that classifications based on legitimacy must be substantially related to permissible state interests, which constitutes heightened scrutiny). For example, illegitimate children are a protected class. Id. Since historically the legal standing of illegitimate children parallels that of homosexuals, this Court should take that analysis into consideration. While both illegitimate children and homosexuals might be able to conceal their class status in everyday interactions, they face special obstacles when seeking equal treatment from the government at which time their class status comes to light. Just as legitimacy classifications receive heightened scrutiny, homosexuals should be protected in the same way. Although courts look for obvious, immutable, or distinguishing characteristics when identifying a class, satisfaction of only one criterion suffices. High Tech Gays 16

30 v. Def. Indus. Sec. Clearance Office, 909 F.2d 375, 377 (9th Cir. 1990). The Supreme Court has declined to mention immutability in a number of its determinations of protected classes. See, e.g., Cleburne, 473 U.S. at ; Murgia, 427 U.S. at 313. The words obvious, immutable, and distinguishing refer to markers that denote frequent victims of discrimination; the real question is whether unfair branding or resorts to prejudice result from membership in a class. High Tech Gays, 909 F.2d at 377. Equal Protection does not require every member of the class to be able to check every box to receive protected class status. In fact, the Supreme Court held in Graham v. Richardson that aliens constitute a protected class, even though membership in this class is almost certain to change over time. Graham v. Richardson, 403 U.S. 365, (1971). Also, as to gender, a small fraction of women and men change their genders and live physically and psychologically as the opposite gender. However, the Court has nevertheless held that gender remains immutable. Caban v. Mohammed, 441 U.S. 380, 398 (1979) (Stewart, J., dissenting) ( Gender, like race, is a highly visible and immutable characteristic ). Immutability is therefore helpful to an analysis but not an absolute prerequisite. As homosexuals have a distinguishing characteristic they satisfy the criterion needed to receive protected class status. 4. Homosexuals merit heightened scrutiny under an Equal Protection analysis because judicial intervention is necessary to ensure equality in the execution of the laws. Finally, homosexuals merit heightened scrutiny under an Equal Protection analysis because their ability to receive equal treatment relies on support from the 17

31 judiciary. Despite recent progress, homosexuals remain a politically vulnerable minority. Their situation parallels the way women as a class were treated at the time of Frontiero. The Court noted in Frontiero that the position of women in America has improved markedly in recent decades. Nevertheless, it can hardly be doubted that women still face pervasive, although at times more subtle, discrimination. Frontiero, 411 U.S (1973) (plurality opinion of Brennan, J.). Similarly, it would be improper to deny heightened scrutiny to homosexuals. Despite several legal advancements, such as 2013 s Supreme Court decision United States v. Windsor, 133 S.Ct (2013) (invalidating part of the Defense of Marriage Act ( DOMA ), 1 U.S.C.A. 7) many hurdles remain for homosexuals due to their relative political powerlessness. Homosexuals have encountered significant discrimination and inadequate protection from it in the workplace. The Employment Non-Discrimination Act ( ENDA ) failed in the Senate by only one vote in 1996; further, although it took seventeen years to pass the Senate it still has not passed the House. Jeremy C. Lowe, Homosexual Discrimination and Government Employment: Shahar v. Bowers The Government Employer s Shield of Public Animosity, Wash. U. J. Urb. & Contemp. L. 191, 192 (Winter 2008). Additionally, homosexuals have faced barriers in adopting children due to state actions such as Florida s adoption statute. West s Fla.S.A (3). In fact, homosexuals political position is much the same as that of women in the early 1970s or African-Americans in the late 1960s. Each group had achieved a number of 18

32 legal advancements in the preceding years, but no group was sufficiently powerful to defend itself. The fact that a group may have gained some political power does not preclude them from protected class status; otherwise it would be impossible to justify the numerous decisions that continue to treat sex, race, and religion as suspect classifications. In re Marriage Cases, 183 P.3d at 443. The Supreme Court still found each group to be a protected class for Equal Protection purposes, and the Court should do so in the present case. Homosexuals have been historically subject to discrimination; their shared characteristic bears no relationship to their ability to contribute to society; they exhibit distinguishing characteristics that set them apart as a distinct group; and they are politically unable to protect themselves. The Supreme Court s four considerations, then, dictate that homosexuals must be treated as a protected class for an Equal Protection analysis. B. The Supreme Court s 2013 Ruling In United States v. Windsor Implies That Heightened Scrutiny Should Be Utilized When Evaluating Homosexuals Under The Equal Protection Clause. In United States v. Windsor, the Court s reasoning revealed that classifications based on sexual orientation call for something more searching than rational basis scrutiny. Windsor, 133 S.Ct. at (holding Section 3 of DOMA to be unconstitutional); SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, 481 (9th Cir. 2014). The Windsor Court did not explicitly declare that heightened scrutiny applies to all sexual orientation classifications. Windsor, 133 S.Ct. at However, Windsor s reasoning rejected rational basis scrutiny by 19

33 inquiring into Congress s justification for the law. Id. at 2689 (declaring that the design, purpose, and effect of DOMA constitute the beginning point of deciding its constitutionality). In SmithKline Beecham Corp. v. Abbott Laboratories, the Ninth Circuit correctly held that Windsor precludes rational basis review of any categorization on the basis of sexual orientation. SmithKline Beecham, 740 F.3d at The dispute in SmithKline Beecham related to licensing and pricing of medicine for HIV/AIDS, a disease, the court recognized, that held special significance for the homosexual community. Id. at 474. The defense used its first peremptory strike to eliminate the only self-identified homosexual member of the venire. Id. The plaintiff challenged the strike under Batson, but the trial court rejected its challenge. Id. On appeal the Ninth Circuit first considered whether the plaintiff had made a prima facie case sufficient to shift the burden under Batson. Id. at 476. In concluding that it had, the court said that when a class s characteristic coincided with the subject matter of a case, the potential for an impermissible strike increases substantially. Id., quoting J.E.B., 511 U.S. at 140. The court therefore concluded that the juror was struck due to his sexual orientation. SmithKline Beecham, 740 F.3d at 479. After concluding that the juror was struck because he was homosexual, the Ninth Circuit turned to the question of whether striking a homosexual juror violated the Equal Protection Clause. Id. at 479. As the court correctly noted, if sexual orientation is subject only to rational basis review, the strike was 20

34 permissible. Id. at 480. The court noted that in three prior decisions, the Ninth Circuit had used only rational basis review to analyze sexual orientation classifications. Witt v. Dep t of the Air Force, 527 F.3d 806, 821 (9th Cir. 2008); Philips v. Perry, 106 F.3d 1420, 1429 (9th Cir. 1997); High Tech Gays, 909 F2d at 377. Windsor, however, provided a new standard heightened scrutiny for a court to employ. SmithKline Beecham, 740 F.3d at 481 (stating [i]n 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 other words, Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation. ). Three considerations controlled the Ninth Circuit s conclusion and are also applicable in this case. First, in Windsor, the Court did not search for any rational basis for DOMA, implying that their analysis required heightened scrutiny. Windsor, 133 S.Ct. at Rational basis scrutiny is an extremely deferential level of review, under which a law must be upheld if any rational basis could be said to exist. SmithKline Beecham, 740 F.3d at 481. The imagined rational basis need not even be the reason the legislature passed the law. Fed. Commc n Comm n v. Beach Commc ns, Inc., 508 U.S. 307, 315 (1993). Laws scrutinized for a rational basis have been shown tremendous deference in the Supreme Court since See, e.g., United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980); Williamson v. Lee Optical, 348 U.S. 483 (1955). In Windsor, however, instead of searching for a rational basis for DOMA, the Court inquired directly into the essence of the law, 21

35 asking its design, purpose, and effect. Windsor, 133 S.Ct. at The Court posited no hypothetical justifications for DOMA, and even brushed aside five hypothetical justifications offered by the petitioner. Id. The Ninth Circuit concluded correctly that this focus on DOMA s actual purpose and refusal to consider hypothetical purposes could not be explained as rational basis review. SmithKline Beecham, 740 F.3d at 482. Second, contrary to typical rational basis review, Windsor was not deferential to Congress and required a legitimate purpose for DOMA s disparate treatment of homosexuals. Windsor, 133 S.Ct. at Neither a presumption of constitutionality nor deference to the legislature appears in Windsor. Windsor, 133 S.Ct. at When a law subject to rational basis review results in some inequality, the Court usually considers this an issue to be resolved by the legislature, not the courts. SmithKline Beecham, 740 F.3d at 482. Windsor, however, addressed the second-class status that DOMA imposed upon homosexuals and forced Congress to show justification for this status. Windsor, 133 S.Ct. at Thus, by demanding a legitimate purpose that justified DOMA s burden on homosexuals, the Court in Windsor clearly subjected the classification to more than rational basis review. Third, in Windsor the Court supported its arguments with three main cases, two of which employed heightened scrutiny, thereby implicitly adopting that standard for homosexuals. SmithKline Beecham, 740 F.3d at 483; Lawrence, 539 U.S. at 573 (heightened scrutiny); Romer v. Evans, 517 U.S. 620, 633 (1996) 22

36 (rational basis scrutiny); Dep t of Agriculture v. Moreno, 413 U.S. 528, 538 (1973) (heightened scrutiny). The Court first cited Lawrence, which while not an Equal Protection case, nullified a Texas state law prohibiting sodomy, which the court considered to be a protected liberty interest under the Fourteenth Amendment. Lawrence, 539 U.S. at 573. The Court then cited Romer, which used rational basis scrutiny to invalidate a Colorado state constitutional amendment preventing municipalities from passing protective legislation for homosexuals. Romer, 517 U.S. at 633. Finally, the Court cited Moreno, which utilized something more than rational basis scrutiny. Moreno, 413 U.S. at 538. In Moreno, the Court declared unconstitutional a provision of the Food Stamp Act of 1964 which withheld food stamps from people in certain non-traditional living arrangements. 7 U.S.C. 2012(e); Id. Even though a rational basis for such a distinction might have been found, the Court focused on the actual animus to the class affected. Moreno, 413 U.S. at 538. The Supreme Court s reliance on two heightened scrutiny cases mandates the use of heightened scrutiny to evaluate sexual orientation classifications. SmithKline Beecham, 740 F.3d The Supreme Court s Windsor decision clearly demands more than rational basis scrutiny to evaluate classifications based on sexual orientation. Not only did the Court inquire into DOMA s actual purpose, rather than positing a rational basis for it, but it demanded a legitimate purpose to justify its disparate treatment of homosexuals, and finally relied upon cases that used heightened scrutiny. Windsor, 23

37 133 S.Ct. at Both the Court s reasoning and its sources of support in the Windsor decision illustrate heightened scrutiny. C. The Mere Presence Of Collateral Issues, Implicit In Cases Involving Homosexuals, Should Not Dissuade This Court From Applying Heightened Scrutiny. The District Court s reasoning that the issue of same-sex marriage is so central to the debate over homosexual rights that it would be intolerable to decide that issue collaterally in this case fails for two reasons. (R. at 14.) First, analyzing sexual orientation classifications under heightened scrutiny would not change the likely eventual outcome of the debate the nullification of all same-sex marriage bans. To date, every federal court of appeals that has entertained a case involving a same-sex marriage ban has struck that ban down. Bostic v. Schaefer, 760 F.3d 352, 367 (4th Cir. 2014); Baskin v. Bogan, 766 F.3d 648, 654 (7th Cir. 2014); Latta v. Otter, 2014 WL at *1 (9th Cir. 2014); Perry v. Brown, 671 F.3d 1052, (9th Cir. 2012); Kitchen v. Herbert, 755 F.3d 1193, 1199 (10th Cir. 2014). Furthermore, the Supreme Court implicitly approved of this result, declining to hear a same-sex marriage case in October Term See, e.g., Kitchen v. Herbert, 2014 WL at *1 (10th Cir. 2014). Bans on same-sex marriage do not even survive the rational basis scrutiny courts currently apply. Applying heightened scrutiny would not decide the issue. Further, every case that has applied heightened scrutiny has decided future cases collaterally. When the Supreme Court applied strict scrutiny to racial internment camps in Korematsu, it decided cases regarding interracial marriage, 24

38 Loving v. Virginia, 388 U.S. 1, (1967), prison intake procedures, Johnson v. California, 543 U.S. 499, 515 (2005), and affirmative action, Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, (2007). When the Supreme Court applied heightened scrutiny to gender classifications in armed forces regulations in Frontiero, it also decided that men must be admitted to institutions that were traditionally women-only, Miss. Univ. for Women v. Hogan, 458 U.S. 718, 733 (1982), that divorcing men and women should receive assistance based on their earnings, not their gender, Orr v. Orr, 440 U.S. 268, 283 (1979), and that a government-run military institution must accept women, United States v. Virginia, 518 U.S. 515, 545 (1996). The same could be said for the Court s decisions to apply heightened scrutiny to classifications based on legitimacy, alienage, and national origin. Heightened scrutiny has collateral effects here, but it always does, the Court has never declined to apply such scrutiny for this reason. Because homosexuals satisfy all four of the Supreme Court s factors for determining a protected class, and because the Supreme Court s decision in Windsor demands more than rational basis scrutiny for sexual orientation classifications, this Court should affirm the Twelfth Circuit s ruling that homosexuals merit heightened scrutiny under any Equal Protection analysis. Further, the Supreme Court has held that Batson prevents the striking of a juror who belongs to a protected class for Equal Protection purposes. Therefore Petitioners strike was impermissible under Batson. 25