ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT

Transcription

1 Team Number: 59 No IN THE SUPREME COURT OF THE UNITED STATES 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 THE RESPONDENT

2 QUESTIONS PRESENTED I. In the context of peremptory challenges, the Equal Protection Clause forbids striking a juror based on a discriminatory classification unless that classification is subject to rational basis review. Lesbians and gay men are victims of historical discrimination, and this Court has applied a heightened level of scrutiny to discrimination based on sexual orientation. Does striking a potential juror solely based on their sexual orientation violate the Equal Protection Clause? II. The FTAIA s direct effect requirement is met when foreign conduct has a direct, substantial, and reasonably foreseeable effect on United States commerce. This requirement has historically been a question of proximity and degree a chain of causation between foreign-anticompetitive conduct and the effect in the United States. Should the direct effect requirement be measured by a standard that cuts off liability for foreign-anticompetitive conduct where there are intervening developments? i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i TABLE OF AUTHORITIES... iv STATEMENT OF JURISDICTION... 1 STANDARD OF REVIEW... 1 STATEMENT OF THE CASE... 1 STATEMENT OF FACTS... 3 I. Factual Background... 3 II. Procedural Background... 4 SUMMARY OF THE ARGUMENT... 7 ARGUMENT... 9 I. The Twelfth Circuit correctly held that using a peremptory strike against a potential juror based on perceived sexual orientation violates the Equal Protection Clause because such classifications give rise to a heightened level of judicial scrutiny and are afforded Batson s protections A. Classifications based on sexual orientation give rise to heightened scrutiny There is a long history of purposeful discrimination based on sexual orientation The opportunity to serve on a jury is an important right that should not be denied to lesbians and gay men This Court recognizes that discrimination against American citizens based on sexual orientation warrants heightened scrutiny B. The principles outlined in Batson and its progeny in conjunction with a heightened level of scrutiny extend Batson s protections to classifications based on sexual orientation C. Applying Batson s protections, the Foreign Suppliers struck Panel Member #10 in violation of the Equal Protection Clause ii

4 II. The Twelfth Circuit correctly held that the FTAIA s direct effect requirement is satisfied where there is a reasonably proximate causal nexus because a broad standard is consistent with 70 years of American antitrust law, Congressional intent, and the statute s plain language A. The FTAIA merely codified existing American antitrust law Existing American antitrust law established a broad test for determining when the Sherman Act applies to foreign conduct The FTAIA merely codified the common law B. The FTAIA s history, context, and statutory purpose indicate that the statute s direct effect requirement is best defined as reasonably proximate causal nexus The immediate consequence standard is based on flawed reasoning The Department of Justice recognizes that the reasonable proximate causal nexus standard is consistent with antitrust law Principles of statutory construction demand the reasonably proximate causal nexus standard C. There was a reasonably proximate causal nexus between the Foreign Suppliers anticompetitive conduct and Starke s diminished United States market share CONCLUSION iii

5 TABLE OF AUTHORITIES Constitutional Provisions U.S. Const. amend. XIV... 9 Supreme Court Cases Adarand Constructors Inc. v. Pena, 515 U.S. 200 (1995)... 9 Almendarez-Torres v. United States, 523 U.S. 224 (1998) Am. Banana Co. v. United Fruit Co., 213 U.S. 347 (1909) Astoria Fed. Savings & Loan Assn. v. Solimino, 501 U.S. 104 (1991) Blue Shield of Va. v. McCready, 457 U.S. 465 (1982) Carter v. Carter Coal Co., 298 U.S. 238 (1936) City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)... 12, 19 Davis v. Mich. Dep t of Treasury, 489 U.S. 803 (1989) Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) First Options v. Kaplan, 514 U.S. 938 (1995)... 1 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) Frontiero v. Richardson, 411 U.S. 677 (1973)... 12, 13, 16 Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993)... 30, 31, 32, 33 Isbrandtsen Co. v. Johnson, 343 U.S. 779 (1952) J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)... passim iv

6 Lawrence v. Tex., 539 U.S. 558 (2003)... passim Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307 (1976)... 12, 13, 17 N. Sec. Co. v. United States, 193 U.S. 197 (1904) Plessy v. Ferguson, 163 U.S. 537 (1896)... 9 Plyler v. Doe, 457 U.S. 202 (1982)... 12, 17 Powers v. Ohio, 499 U.S. 400 (1991) Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (2000)... 1 Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (1992)... 35, 36 Rice v. Collins, 546 U.S. 333 (2006) Romer v. Evans, 517 U.S. 620 (1996)... 20, 21 Rowland v. Mad River Local Sch. Dist., Montgomery Cnty., Ohio, 470 U.S (1985) United States v. Tex., 507 U.S. 529 (1993) United States v. Va., 518 U.S. 515 (1996) United States v. Windsor, 133 S. Ct (2013)... 19, 20, 22 Watt v. Alaska, 451 U.S. 259 (1981) Court of Appeals Cases Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014)... 15, 16 Empagran S.A. v. F. Hoffmann-LaRoche Ltd., 417 F.3d 1267 (D.C. Cir. 2005) Gay Alliance of Students v. Matthews, 544 F.2d 162 (4th Cir. 1976) v

7 In re Ins. Antitrust Litig., 938 F.2d 919 (9th Cir. 1991) In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 109 (2d Cir. 2013) Kesser v. Cambra, 465 F.3d 351 (9th Cir. 2006) Lotes Co., Ltd. v. Hon Hai Precision Indus. Co., 753 F.3d 395 (2d Cir. 2014)... 36, 37, 40, 44 Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012)... passim SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014)... 14, 15, 16, 22 United States v. Aluminum Co. of Am. (Alcoa), 148 F.2d 416 (2d Cir. 1945)... passim United States v. Anderson, 755 F.3d 782 (5th Cir. 2014)... 1 United States v. LSL Biotechnologies, 379 F.3d 672 (9th Cir. 2004)... passim Witt v. Dep't of Air Force, 527 F.3d 806 (9th Cir. 2008)... 21, 22 Other Cases benshalom v. Sec y of the Army, 489 F.Supp. 964 (E.D. Wis. 1980)... 14, 15 Com. v. Peaslee, 177 Mass. 267 (1901) Dominicus America Bohio v. Gulf & Western Industries, Inc., 473 F.Supp. 680 (S.D.N.Y. 1979) Eurim-Pharm GmbH v. Pfizer Inc., 593 F. Supp (S.D.N.Y. 1984) In re TFT-LCD (Flat Panel) Antitrust Litig., 822 F. Supp. 2d 953, 960 (N.D. Cal. 2011) N.Y. v. Onofre, 51 N.Y.2d 476 (1980)... 14, 15 Occidental Petroleum Corp. v. Buttes Gas & Oil Co., 331 F. Supp. 92 (C.D. Cal. 1971) The In Porters, S.A. v. Hanes Printables, Inc., 663 F. Supp. 494 (M.D.N.C. 1987) , 29 vi

8 Todhunter-Mitchell & Co. v. Anheuser-Busch, Inc., 383 F. Supp. 586 (E.D. Pa. 1974) United States v. Timken Roller Bearing Co., 83 F. Supp. 284 (N.D. Ohio 1949) United States. v. Imperial Chem. Indus., 100 F. Supp. 504 (S.D.N.Y. 1951) Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 494 F. Supp (E.D. Penn.1980) Federal Statutes 15 U.S.C U.S.C , U.S.C Legislative Sources H.R. Rep. No , 33 Periodicals 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 (2005) Richard W. Beckler & Matthew H. Kirtland, Extraterritorial Application of U.S. Antitrust Law: What Is A Direct, Substantial, and Reasonably Foreseeable Effect Under the Foreign Trade Antitrust Improvements Act?, 38 Tex. Int l L.J. 11 (2003) Other Secondary Sources Antitrust Guide for International Operations 6 7 (Jan. 26, 1977) Letter from the Att y Gen. to Cong. on Litig. Involving the Def. of Marriage Act (February 23, 2011) (on file with the United States Department of Justice)... 11, 15 Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage 5 (2013) Von Kalinowski, Antitrust Laws and Trade Regulations vii

9 STATEMENT OF JURISDICTION A formal Statement of Jurisdiction is omitted under Rule 3.2 of the National Moot Court Competition Rules, Comments, and Forms. STANDARD OF REVIEW When reviewing motions for summary judgment and motions for a new trial, the court reviews questions of law de novo. See First Options v. Kaplan, 514 U.S. 938, (1995); see also United States v. Anderson, 755 F.3d 782, 800 (5th Cir. 2014). With judgments as a matter of law, the Court must review all of the evidence and draw all reasonable inferences in favor of the non-moving party, but cannot make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000). STATEMENT OF THE CASE Starke Pharmaceuticals ( Starke ), a United States corporation, sued its Viseriol suppliers, Bolton Chemists Corporation ( Bolton ) and Walder Medical Supply, GmbH ( Walder ) (collectively Foreign Suppliers ), in the Federal District Court for the District of North Westeros. (R. at 2, 3, 6.) Bolton is a South Korean corporation, and Walder is a German corporation. Id. Starke alleged conspiracy and price-fixing in violation of the Sherman Act. Id. During jury selection, Starke asserted an unsuccessful Batson challenge against the Foreign Suppliers for striking Panel Member #10 based on his sexual orientation. Id. at 7. At the close of trial, the court overruled Starke s objection to the court s jury instruction that the 1

10 immediate consequence language improperly narrowed the standard under the Foreign Trade Antitrust Improvements Act ( FTAIA ). Id. at 8. The jury returned a verdict for the Foreign Suppliers. Id. Starke moved for judgment as a matter of law, and, alternatively, for a new trial under the Federal Rules of Civil Procedure, respectively. Id. Starke asserted two grounds in support of its motion: (1) the court erred by allowing the Foreign Suppliers to strike Panel Member #10 from the jury; and (2) the court improperly instructed the jury with a standard of conduct that was too narrow under the FTAIA. Id. The District Court wholly denied Starke s motion, holding that the peremptory strike was appropriate because rational basis applied to Batson challenges based on sexual orientation. Id. at 15. On the FTAIA issue, the court found that an effect is direct under the FTAIA where it follows as an immediate consequence of the alleged conduct. Id. at 22. Starke appealed the decision, and the Twelfth Circuit reversed the District Court s decision, holding that heightened scrutiny is the appropriate standard for classifications based on sexual orientation. The court further held that Batson s protections applied to peremptory strikes based on a juror s sexual orientation. Id. at 33. On the FTAIA issue, the Twelfth Circuit rejected the immediate consequence standard and held that the reasonable proximate causal nexus standard is more consistent with the language of the FTAIA, the history of American antitrust law, and the legislative intent behind the FTAIA. Id. at

11 STATEMENT OF FACTS I. Factual Background Founded by a small group of medical research scientists, Starke developed a revolutionary, single-pill cocktail for the treatment of HIV/AIDS Rx Sansa ( Sansa ). (R. at 2.) Each prescription of Sansa was specifically tailored for each patient using a ratio of three active drugs Drogonox, Rhaegapan, and Viseriol. Id. Of the three active ingredients, Viseriol made up 40-50% of each Sansa pill. Id. Starke secured patents on all three active ingredients as well as the process used to create Sansa. Id. at 3. Since Starke focused solely on research and development, it outsourced the manufacturing of all three drugs and Sansa s production. Id. at 2-3. Bolton and Walder were the sole manufacturers of Viseriol for Starke. Id. Bolton manufactured Viseriol in South Korea, and Walder manufactured it in Germany. Id. When Starke s 20-year patent expired in 2009, competing companies introduced generic brands of Sansa ( Generics ) to the market. Id. at 3. Generally, after the patent-period expires, name-brand drugs cannot compete with the prices of generic drugs. Id. Generics tend to avoid the high cost of research by focusing on efficiently manufacturing off-brand pills in-house. Id. For this reason, the namebrand-drug companies usually try to recoup the astronomical costs of research and development while establishing their brand during the patent period. Id. at 3. During Starke s 20-year patent period, Starke enjoyed 100% of the market. (See Id. at 2.) The Generics entered the market at 80% of Sansa s market price; by the end 3

12 of 2009, they had 30% market share of all HIV/AIDS cocktails sold in the United States. Id. at 5. By the end of 2010, the Generics increased their market share to 46%. In a matter of two years, Starke lost close to 50% of their market share, so it decided to reevaluate its supply chain. Id. During this reevaluation, Starke discovered evidence of price fixing between Bolton and Walder, the sole suppliers of Viseriol. Id. During the patent-period, the Foreign Suppliers competed with each other for Starke s Viseriol contract. After the patent-period, the Foreign Suppliers began to match and sharply increase their Viseriol prices. Id. This increase in price only affected Starke because the Generics produced all their cocktail ingredients in-house. Id. Due to the price-fixing, Starke could not compete with the Generics, which caused Starke to lose a substantial percentage of the United States market. Id. II. Procedural Background Starke filed suit against the Foreign Suppliers in the Federal District Court for the District of North Westeros, alleging that their anticompetitive conduct violated the Sherman Act. Id. at 6. During the jury trial, the Court led the voir dire of the 20-member venire. Id. The Foreign Suppliers used a peremptory strike to excuse Panel Member #10 after the following exchange: COURT: PANEL MEMBER #10: COURT: PANEL MEMBER #10: COURT: Panel Member #10, do you have any hobbies? Sure. Tell us about them. I love to sing. I sing in a church choir and in the Winterfallen Gay Men s Chorus.... Do you know anyone who has contracted HIV/AIDS? 4

13 PANEL MEMBER #10: COURT: PANEL MEMBER #10: COURT: PANEL MEMBER #10: COURT: PANEL MEMBER #10: Not personally. But I remember the 80s, sitting in the bar and listening to my friends talk about people they had lost to the AIDS. I didn t lose anyone close to me to AIDS, I mean. But during the 80s and 90s, familiar faces would disappear from the neighborhood, and everyone sort of knew why.... Have you tested HIV positive? No. Do you currently take, or have you ever taken, a drug manufactured by the Plaintiff in this case? No. If you are selected to serve on this jury, do you believe that you would be impartial and would decide this case based on my instructions and the evidence admitted at trial? Yes, ma am. Id. at 6-7. In response to the Foreign Suppliers preemptory strike, Starke asserted a Batson objection, claiming that they discriminated against Panel Member #10 based on his sexual orientation. Id. at 7. The Foreign Suppliers claimed that Panel Member #10 s extensive exposure to the ravages of HIV/AIDS in his community would influence his deliberations. Id. Despite Panel Member #10 s further testimony that he could be impartial, listen to the judge s instructions, and only consider the evidence admitted at trial, the judge overruled Starke s objection and dismissed Panel Member #10. The case proceeded to trial. Id. at 8. At the close of evidence, the court provided the jury with the following jury instruction regarding the Foreign Suppliers violation of the Sherman Act:... 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 that the effect in the United States must follow as an immediate consequence of the defendants activity. 5

14 Id. Starke filed a written objection to this portion of the jury charge on the grounds that it articulated an improperly narrow definition of the standard for extraterritorial application of the Sherman Act, as governed by the FTAIA. Id. The court denied the objection. Id. The jury deliberated for two hours and found in favor of the Foreign Suppliers. Id. Starke moved for judgment as a matter of law and a new trial in the alternative on two grounds: (1) the court erred in allowing the peremptory strike against Panel Member #10 and (2) the court erred in instructing the jury to follow the strict immediate consequence standard. Id. The District Court denied the motion, holding that a Batson challenge based on sexual orientation only deserves rational basis review and the Foreign Suppliers asserted a nondiscriminatory basis for the strike. Id. at 15. For the standard under the FTAIA, the court held that there was no error in the jury instructions and that an effect is direct under the FTAIA where it follows as an immediate consequence of the alleged conduct. Id. at 22. Starke appealed to the Twelfth Circuit, and the court reversed the lower court s decision on both issues. Id. at 9. The court first found that Batson s protection apply to discrimination based on a potential juror s sexual orientation. Therefore, the District Court improperly allowed the peremptory strike against Panel Member #10 because the Foreign Suppliers struck him based on his sexual orientation. Id. at 23. The court also found that the District Court erred in instructing the jury to apply a strict standard under the FTAIA and that the 6

15 reasonably proximate causal nexus test is more appropriate to find liability under the statute. Id. at 34, 36. The court reasoned that a standard that is too attenuated, such as the immediate consequence standard, would result in a dismissal as it did here. Id at 36. This Court granted the Foreign Suppliers petition for certiorari on both issues. Id. at 9. SUMMARY OF THE ARGUMENT The Twelfth Circuit s decision should be affirmed on both issues. This case involves two laws one designed to protect United States citizens and one designed to protect United States companies. Lesbians and gay men deserve heightened scrutiny and Batson s protections because they have been historically discriminated against solely based on their sexual orientation, and serving on a jury is an important right for American citizens. The Equal Protection Clause should protect lesbians and gay men s right to sit on a jury amongst their peers. Likewise, the FTAIA protects United States companies from foreign-anticompetitive conduct that directly affects the United States market. The Twelfth Circuit correctly held that classifications based on sexual orientation warrant heightened judicial scrutiny and should be afforded Batson s protection in jury selection. The Equal Protection Clause and the Fifth Amendment Equal Protection component govern the use of peremptory challenges. Peremptory challenges, in both criminal and civil trials, may not be used to strike a juror solely on the basis of race or gender. The principles in Batson and its progeny that forbid race and gender discrimination also apply to classifications based on sexual 7

16 orientation. Lesbians and gay men are victim to irrational prejudice and discrimination. Furthermore, serving on a jury is an important right that should not be denied to this class of people. Accordingly, classifications based on sexual orientation give rise to heightened scrutiny. Given the level of scrutiny and the historical prejudice against this class, the Equal Protection Clause should protect lesbians and gay men from discriminatory uses of peremptory challenges. Next, the Twelfth Circuit correctly held that foreign-anticompetitive conduct is governed by the FTAIA if the foreign conduct bears a reasonably foreseeable proximate causal nexus with its alleged domestic effects. Congress enacted the FTAIA to ensure that United States companies doing business with foreign companies remain fully protected by the federal antitrust laws. Logically, the FTAIA s direct effect requirement should extend the extraterritorial reach of the Sherman Act when a chain of causation exists between the foreign-anticompetitive conduct and the effect on United States commerce. The FTAIA is not a lenient statute for courts to apply narrowly, but one that courts have historically applied broadly to protect United States companies from illegal price fixing. A restrictive test, such as the immediate consequence test, would undermine Congress s objective of protecting companies in the United States from foreign-anticompetitive harm. Conversely, when construed in light of the FTAIA s purpose, history, and plain language, the statute s direct effect requirement is best met under a reasonably proximate causal nexus standard. It is a fair standard because it 8

17 excludes foreign conduct that is too remote from the ultimate effects on United States commerce while including foreign conduct that proximately causes foreseeable harm to the United States market through a chain of events. For these reasons, the FTAIA s direct effect requirement is satisfied where there is a reasonably proximate causal nexus. Therefore, Starke respectfully requests that this Court affirm the Twelfth Circuit s decision on both issues consistent with the Twelfth Circuit s opinion. ARGUMENT I. The Twelfth Circuit correctly held that using a peremptory strike against a potential juror based on perceived sexual orientation violates the Equal Protection Clause because such classifications give rise to a heightened level of judicial scrutiny and are afforded Batson s protections. Our constitution... neither knows nor tolerates classes among citizens. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). Using a peremptory challenge to remove a potential juror solely based on their perceived sexual orientation is an Equal Protection violation. The Equal Protection Clause requires that no State deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV. 1 In Batson v. Kentucky, this Court held that the Equal Protection Clause governs the exercise of peremptory challenges in the criminal context. 476 U.S. 79 (1986) (holding that the Equal Protection Clause prohibits a prosecutor from striking a juror solely based on their race). As this Court explained in Batson, the defendant does have the right to be 1 This Court has long held that Equal Protection is a component of the Fifth Amendment Due Process Clause allowing equal protection claims in the federal context. Adarand Constructors Inc. v. Pena, 515 U.S. 200, 204 (1995). 9

18 tried by a jury whose members are selected pursuant to nondiscriminatory criteria. Id. at After Batson, this Court expanded those protections to gender-based classifications and jury selection in both criminal and civil trials. See Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) (expanding Batson to also apply in the civil context); see also J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (holding that the Equal Protection Clause prohibits [gender] discrimination in jury selection ). In the cases that expanded Batson s protection, this Court has demonstrated the desire to establish jury selection procedures that are fair and nondiscriminatory. J.E.B., 511 U.S. at 128. Applying Batson s protections to sexual orientation is the next logical step to achieving jury-selection procedures that are truly fair and nondiscriminatory. Like this Court did for gender and race classifications, this Court should also apply the protections in Batson and its progeny to prohibit discriminatory peremptory strikes based on sexual orientation. The level of scrutiny is important to determine Batson s applicability to a classification because, as this Court explained, parties may exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to rational basis review. Id. at 143. However, it is well established that potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from statesponsored group stereotypes rooted in, and reflective of, historical prejudice. J.E.B., 511 U.S. at 128. Accordingly, if the classification warrants anything higher than rational basis and the class has been the victim of historical prejudice, Batson s 10

19 protections will apply. See, e.g., id. Therefore, it is a violation of the Equal Protection Clause for parties to strike potential jurors solely based on such classifications. See id. (holding that using a peremptory strike to remove a juror solely based on gender was subject to heightened scrutiny and, ultimately, violated the Equal Protection Clause); see also Batson, 476 U.S. at (holding that using a peremptory strike to remove a juror because of race was subject to strict scrutiny and violated the Equal Protection Clause). Lesbians and gay men should be afforded the Equal Protection rights outlined in Batson because they are victims of historical prejudice and discriminatory stereotypes. Classifications based on sexual orientation like gender classifications require a heightened form of scrutiny. Given the level of scrutiny and the historical prejudice against this class, Batson s protections should apply to classifications based on sexual orientation. Accordingly, as the Twelfth Circuit correctly held, removing a juror solely based on his sexual orientation is a violation of the Equal Protection Clause. (R. at 32.) Therefore, this Court should affirm the Twelfth Circuit s decision and hold that discriminating on the basis of sexual orientation in jury selection violates the Equal Protection Clause. A. Classifications based on sexual orientation give rise to heightened scrutiny. Even though this Court has not yet ruled on the proper level of scrutiny for discrimination based on sexual orientation, such discrimination warrants heightened scrutiny. Letter from the Att y Gen. to Cong. on Litig. Involving the Def. of Marriage Act (February 23, 2011) (on file with the United States Department of 11

20 Justice). Prior cases from this Court have set out criteria for when heightened scrutiny applies. Id. These criteria include whether the group has endured a history of discrimination and whether the discrimination has deprived the group of an important right. See Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, (1976) (analyzing whether there has been a history of purposeful discrimination); see also Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (using a history of purposeful discrimination to warrant heightened scrutiny); see also Plyler v. Doe, 457 U.S. 202, (1982) (analyzing the deprivation of important rights to warrant heightened scrutiny); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, (1985) (analyzing the deprivation of rights). The criteria this Court set forth shows that heightened scrutiny applies to classifications based on sexual orientation. The Foreign Suppliers struck Panel Member #10 from the jury solely based on his sexual orientation. As a result, he was denied the important opportunity to serve on a jury of his peers solely because he was gay. Being gay has no relation to his ability to objectively serve as a juror. Batson and the Equal Protection Clause both stand for equal treatment and prohibiting discriminatory practices. Discriminating against lesbians and gay men in jury selection requires heightened scrutiny for several compelling reasons: (1) lesbians and gay men have endured a long history of discrimination; (2) the opportunity to be a juror is an important right; and (3) precedent from this Court supports the application of heightened scrutiny. Considering all these factors, classifications based on sexual orientation warrants heightened judicial scrutiny. 12

21 1. There is a long history of purposeful discrimination based on sexual orientation. The historical discrimination and prejudice that lesbians and gay men face give rise to heightened scrutiny. When members of a certain class have faced unequal treatment and a history of discrimination, this Court has consistently applied either strict scrutiny or a heightened level of scrutiny. See Murgia, 427 U.S. at 312; see also Frontiero, 411 U.S. at 684; see also Rowland v. Mad River Local Sch. Dist., Montgomery Cnty., Ohio, 470 U.S. 1009, 1014 (1985) (Brennan, J., dissenting denial of cert.). In Frontiero, this Court used historical discrimination based on sex to justify the application of heightened scrutiny to gender classifications. 411 U.S. at 684. As this Court explained, [t]his departure from traditional rational-basis analysis with respect to sex-based classifications is clearly justified. There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Id. at 684 (internal quotation marks omitted). This Court goes on to cite instances of discrimination against women in the context of social status, employment, education, and the political arena. Id. at Similarly, these are all contexts where lesbians and gay men face discrimination. Like the history of discrimination women faced in Frontiero, lesbians and gay men have also faced a long and unfortunate history of discrimination. As explained by Justice Brennan, homosexuals have historically been the object of pernicious and sustained hostility. Rowland, 470 U.S. at 1014 (Brennan, J., dissenting denial of cert.). This hostility results from irrational prejudice rather than logical reason. Id. Lesbians and gay men have endured prejudice and discrimination across a 13

22 broad spectrum of circumstances. Id. For example, lesbians and gay men have been excluded from employment because of their sexuality. SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, (9th Cir. 2014). As the Ninth Circuit explained, [i]n the first half of the twentieth century, public attention was preoccupied with homosexual infiltration of the federal government. Gays and lesbians were dismissed from civilian employment in the federal government at a rate of sixty per month. Id. (citing Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage 5 (2013)). This discrimination was not only by the federal government, but local and state governments also excluded lesbians and gay men from employment. Id. Professional licensing boards also stripped licenses from lesbians and gay men solely because of their sexual orientation. Id. Some of the other contexts in which there has been discrimination based on sexual orientation include access to university facilities, military service, and even private conduct within one s own home. Id. (citing Gay Alliance of Students v. Matthews, 544 F.2d 162, 167 (4th Cir. 1976) (access to university facilities); benshalom v. Sec y of the Army, 489 F.Supp. 964, 969, (E.D. Wis. 1980) (military service); N.Y. v. Onofre, 51 N.Y.2d 476, , 492 (1980) (private conduct within the privacy of one s own home)). These are only a few examples of the horrible discrimination that lesbians and gay men have faced. All the cases considering this issue have found that lesbians and gay men have faced a long history of discrimination. See, e.g., Gay Alliance, 544 F.2d at 167; benshalom,

23 F.Supp. at 969, ; Onofre, 51 N.Y.2d at , 492. As the attorney general explained in a letter to Congress about the Defense of Marriage Act, [i]ndeed, until very recently, states have demean[ed] the[ ] existence of gays and lesbians by making their private sexual conduct a crime. Letter from the Att y Gen. to Cong. on Litig. Involving the Def. of Marriage Act (February 23, 2011) (on file with the United States Department of Justice) (quoting Lawrence v. Tex., 539 U.S. 558, 578 (2003)) (alterations in original). Our society has been even less tolerant of lesbians and gay men than the historical discrimination against women. See Baskin v. Bogan, 766 F.3d 648, 658 (7th Cir. 2014). Opponents to this position argue that lesbians and gay men have not faced the same amount of discrimination in the context of jury selection. However, the difference is the appearance and type of discrimination that lesbians and gay men have faced, rather than the amount of discrimination. In the context of jury selection, discrimination against lesbians and gay men has not been as apparent as gender, race, or ethnicity. Sexual orientation is a defining characteristic, but only recently have some people have found the courage to be openly gay. SmithKline, 740 F.3d at As the Ninth Circuit explained, [f]or gays and lesbians, keeping one s sexual orientation private has long been a strategy for avoiding the ramifications job loss, being disowned by friends and family, or even potential physical danger. Id. The reluctance to come out only reinforces the fact that lesbians and gay men have faced a long history of discrimination and prejudice in the workplace, at home, and in society. 15

24 Furthermore, the District Court states homosexuals have made significant strides in recent years. (R at 15.) While it is true that conditions have improved to some degree, the court improperly uses this as a justification to deny heightened scrutiny. The improvement of conditions over decades does not mean that discrimination has been eliminated nor does it justify the denial of heightened scrutiny. Although there has been some degree of improvement, often times, the discrimination merely becomes more subtle and less overt. As this Court explained in the context of sex-based discrimination: It is true, of course, 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 in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena. Frontiero, 411 U.S. at (using historical discrimination to apply heightened scrutiny to gender classifications). Even if it is more subtle than in the past, lesbians and gay men still face discrimination today. Lesbians and gay men are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world. Baskin, 766 F.3d at 658. Today, lesbians and gay men still face discrimination from their employers, society, and even disapproval from their own families. See SmithKline, 740 F.3d at By no means has discrimination or prejudice ended with respect to lesbians and gay men. This inexcusable history of discrimination is just one of the reasons that heightened scrutiny applies to classifications based on sexual orientation. 16

25 2. The opportunity to serve on a jury is an important right that should not be denied to lesbians and gay men. The importance of the right to able to serve on a jury also gives rise to heightened scrutiny. The deprivation of an important right warrants heightened scrutiny. See Plyler, 457 U.S. at Strict scrutiny is required where a classification impermissibly interferes with the exercise of a fundamental right. Murgia, 427 U.S. at 312. However, for important rights that do not quite amount to a fundamental right, this Court has applied heightened levels of judicial scrutiny. See Plyler, 457 U.S. at 202 (holding that the right to education is not a fundamental right, but still applying heightened scrutiny due to its importance). In Plyler, this Court weighed the social costs of denying the right to education in deciding that heightened scrutiny applies to the important right to education. Id. at (reasoning that heightened scrutiny is appropriate because denying the right to education leads to a stigma of illiteracy that greatly impacts one s life and their ability to live within the structure of our civic institutions ). Like denying people the right to education, denying someone the opportunity serve on a jury leads to negative social consequences. Even if having the opportunity to serve on a jury is not a fundamental right, this right is still subject to a heightened level of scrutiny. Generally, next to voting, the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process. Powers v. Ohio, 499 U.S. 400, 407 (1991). The right to serve on a jury like the right to education is an important right, and denying that right will only further the prejudice and discrimination faced by 17

26 lesbians and gay men. As the Twelfth Circuit explained, allowing peremptory strikes to remove jurors based on their perceived sexual orientation has negative social costs: (1)... [it] create[s] a negative perception in the struck juror s community about their freedom and right to participate in the regulated public forum of the jury; and (2)... [it] infringe[s] on the litigants or the accused s right to a jury of their peers. (R. at 29.) When an entire class of people is denied the right to serve on a jury, the community and judicial system suffer. J.E.B., 511 U.S. at 140 ( The community is harmed by the State s participation in the perpetuation of invidious group stereotypes and the inevitable loss of confidence in our judicial system that state-sanctioned discrimination in the courtroom engenders. ). Denying the opportunity to serve on a jury solely because of sexual orientation sends the message that it is okay to discriminate against lesbians and gay men. Moreover, allowing peremptory strikes to remove lesbians and gay men from a jury is the equivalent to a law banning lesbians and gay men from serving as jurors. See J.E.B., 511 U.S. at 153 ( For purposes of the Equal Protection Clause, an individual denied jury service because of a peremptory challenge exercised against her on account of her sex is no less injured than the individual denied jury service because of a law banning members of her sex from serving as jurors. ). Not only does this type of discrimination harm the individual s personal dignity, it also denies their right to participate in the political process. The importance of the opportunity to serve on a jury and the repercussions of denying that right solely on the basis of sexual orientation warrants heightened scrutiny. 18

27 3. This Court recognizes that discrimination against American citizens based on sexual orientation warrants heightened scrutiny. For years, this Court has been moving towards reviewing discrimination based on sexual orientation under a standard higher than traditional rational basis review. In fact, recent cases from this Court show that discrimination based on sexual orientation is reviewed under a higher form of judicial scrutiny than traditional rational basis review. See, e.g., United States v. Windsor, 133 S. Ct (2013); Lawrence, 539 U.S Rational basis review is highly deferential to the defending party. Generally, the actions are presumed valid and are sustained under a rational basis analysis. Cleburne Living Ctr., 473 U.S. at 440. In contrast, heightened scrutiny is less deferential, asking for a showing of exceedingly persuasive justification before finding the action valid. United States v. Va., 518 U.S. 515, 556 (1996) (internal quotation marks omitted). While not always explicitly stating that heightened scrutiny applies to sexual orientation, it is clear that the standard is heightened from traditional rational basis. Rational basis review presumes that the action is valid. Cleburne Living Ctr., 473 U.S. at 440. This presumption of validity is not present in cases where this Court evaluates discrimination based on sexual orientation. Under heightened scrutiny review, the defending party has the burden to prove a legitimate motive beyond the asserted discrimination. Va., 518 U.S. at 556. Further, the court does not give deference to the party s motive; rather, the court will test that motive s legitimacy. Id. From the cases over the years, it is clear that discriminatory acts based on sexual orientation are not presumed valid, and the court gives no 19

28 deference to their purportedly justified motives. See, e.g., United States v. Windsor, 133 S. Ct (2013); Lawrence, 539 U.S. at 558. Even early on, this Court applied a more searching form of rational basis review as opposed to traditional rational basis to State governments seeking to discriminate against its citizens based on sexual orientation. In Romer v. Evans, this Court invalidated an amendment to the Colorado State Constitution that prohibited legislation enacted to protect citizens against sexual-orientation discrimination. 517 U.S. 620 (1996). The amendment explicitly prohibited all legislative, executive, or judicial action at all levels of government from protecting the class of people known as homosexual persons, or gays and lesbians. Id. The Colorado Supreme Court invalidated the amendment under Fourteenth Amendment strict scrutiny because it believed the amendment infringed the fundamental right of gays and lesbians to participate in the political process. Id. at 625. This Court held the amendment did not further any proper legislative end, and affirmed the ruling of the Colorado Supreme Court. Id. at This Court may have labeled its review as rational basis, but actually used a heightened form of scrutiny. See id. at 632. This Court reasoned, even in the ordinary equal protection case calling for the most deferential of standards [i.e. rational basis] the amendment fails. Id. at 632. This language shows that the level of scrutiny was something higher than rational basis. 20

29 Some years later, this Court moved even further away from rational basis review for discrimination based on sexual orientation. In Lawrence v. Texas, this Court overruled previous case law allowing States to persecute Americans based on their sexual orientation. 539 U.S. 558 (2003). In Lawrence, police entered a gay man s home and saw him engaged in a private, consensual sex act with another man. Id. at 562. Both men were convicted for violating Texas law prohibiting the conduct. Id. This Court granted certiorari on the issue of whether the Texas statute violated the men s liberty interests under Fourteenth Amendment Due Process. Id. at 564. This Court overruled its previous rulings and held that the men were entitled to respect for their private lives. Id. at 578. This Court further held that the men had the full right to engage in their conduct without intervention of the government. Id. While silent on the level of scrutiny applied, this Court s analysis demonstrates a heightened level of scrutiny in Lawrence. First, this Court did not consider any post-hoc rationalizations for the statute, which this Court would have done under rational basis review. See Witt v. Dep't of Air Force, 527 F.3d 806, 817 (9th Cir. 2008) (analyzing the level of scrutiny in Lawrence). Second, this Court required a showing of a legitimate state interest, which is indicative of heightened scrutiny. See Lawrence, 539 U.S. at 578; see also Witt, 527 F.3d at 817. Third, Lawrence based its decision off cases that relied on heightened scrutiny. See Lawrence, 539 U.S. at 578; see also Witt, 527 F.3d at 817 ( [T]he cases on which the Supreme Court explicitly based its decision in Lawrence are based on heightened 21

30 scrutiny. ). Even though this Court did not expressly state it, all three of these points show that this Court applied a heightened level of scrutiny. Even more recently, this Court continued to apply a heightened level of scrutiny to discrimination based on sexual orientation. In United States v. Windsor, this Court performed a less deferential analysis in reviewing the Defense of Marriage Act ( DOMA, ) a federal statute that denied recognition of same-sex marriages. 133 S. Ct (2013). Relying on Lawrence, this Court held that DOMA was unconstitutional reasoning that the federal government may not punish [p]rivate, consensual sexual intimacy between two adult persons of the same sex. Id. at In reaching this conclusion, this Court used heightened scrutiny. See id. at In both Lawrence and Windsor, this Court applied heightened scrutiny without explicitly stating that it did. Each of the three reasons that Lawrence applied a heightened form of scrutiny are also present in Windsor: (1) Windsor did not consider the post-hoc rationalizations for the law, which would be done under rational basis; (2) Windsor requires Congress to justify its discrimination; and (3) Windsor primarily relies on cases that use heightened scrutiny. SmithKline, 740 F.3d at ; see generally Windsor, 133 S. Ct This Court s analysis in these cases shows that discrimination based on sexual orientation warrants a heightened form of judicial scrutiny. This is important because J.E.B. requires something more than rational basis review in order for Batson s protections to apply to a certain classification. See J.E.B.,

31 U.S. at 143. Therefore, to apply Batson s protections to sexual orientation, this Court does not need to label its review as heightened scrutiny; it just needs to apply something higher than rational basis review. Even though J.E.B. does not require heightened scrutiny, this Court s precedent, the importance of jury service, and historical discrimination establishes that classifications based on sexual orientation warrant heightened scrutiny. Therefore, Batson s protections should be afforded to classifications based on sexual orientation. B. The principles outlined in Batson and its progeny in conjunction with a heightened level of scrutiny extend Batson s protections to classifications based on sexual orientation. Striking a juror based solely on their perceived sexual orientation is a violation of the Equal Protection Clause. Although this Court has not expressly stated that Batson s protections automatically apply to classifications that warrant heightened scrutiny, the principles behind Batson, J.E.B., and the Equal Protection Clause extend these protections to lesbians and gay men. In J.E.B., this Court merely used the principles behind Batson to extend the protections to classifications based on gender. See generally J.E.B., 511 U.S In conjunction with the history of discrimination and exclusion women faced, this Court used heightened scrutiny to extend Batson s protections to apply to gender classifications. Id. at Although the discrimination women faced was not identical to the type of discrimination faced in Batson, this Court still extended the protections to gender classifications. Id. at 135 ( While the prejudicial attitudes toward women in this country have not been identical to those held toward racial minorities, the 23

32 similarities between the experiences of racial minorities and women, in some contexts, overpower those differences. ). The principles enumerated in Batson and its progeny apply to classifications based on sexual orientation. As explained above in Part A, lesbians and gay men, like women, have been victims of a long history of prejudice and discrimination, serving on a jury is an important right, and classifications based on sexual orientation warrant heightened judicial scrutiny. These reasons that give rise to heightened scrutiny and demonstrate inequality are the same reasons why lesbians and gay men deserve Batson s protections. Furthermore, denial of this important right makes lesbians and gay men, the judicial system, and the community suffer. The denial of this right only perpetuates the discrimination and stereotypes that lesbians and gay men face. Therefore, like classifications based on gender, Batson s protections apply to classifications based on sexual orientation. C. Applying Batson s protections, the Foreign Suppliers struck Panel Member #10 in violation of the Equal Protection Clause. Applying Batson s protections to sexual orientation, the Twelfth Circuit correctly held that the Foreign Suppliers peremptory strike violated the Equal Protection Clause. Under Batson, the challenger must first make a prima facie case by showing (1) the potential juror is a member of a cognizable group; (2) opposing counsel used a peremptory strike against the juror; (3) discrimination motivated the strike. Kesser v. Cambra, 465 F.3d 351, (9th Cir. 2006). When there is a prima facie showing that a litigant used a peremptory strike against a juror based on a classification that is afforded Batson s protections, that litigant must provide a 24

33 neutral explanation for striking that juror. See, e.g., J.E.B., 511 U.S. at ; see also Rice v. Collins, 546 U.S. 333, 338 (2006) (explaining the three-step inquiry of a Batson challenge). Finally, after the litigant offers an alleged neutral reason, then the court must determine whether there has been purposeful discrimination. Rice, 546 U.S. at 338. More specifically, the court addresses whether the peremptory challenge based on the classification provide[s] [a] substantial aid to [the] litigant s effort to secure a fair and impartial jury. J.E.B., 511 U.S. at 137. In this case, the discrimination against Panel Member #10 was based solely on his perceived sexual orientation a violation of the Equal Protection Clause. As the Twelfth Circuit noted, we have little difficulty in finding that [Starke] has established a prima facie case of purposeful discrimination. (R. at 24.) First, Panel Member #10 s answers plainly revealed his association to the gay community. (R. at 6.) Second, the Foreign Suppliers used a peremptory strike to remove Panel Member #10. (R. at 7.) Third, they struck him despite unequivocally stating that he had no personal, intimate relationships with anyone affected by HIV/AIDS, and that he could remain objective and impartial showing that discrimination was the motivating factor. (R. at 6-8, 32.) Starke made a prima facie case showing the Foreign Suppliers struck Panel Member #10 because he was gay. Next, the Foreign Suppliers attempted to offer a neutral reason for striking Panel Member #10 by stating it was because of his extensive contact to the ravages of HIV/AIDS. (R. at 7.) Finally, the Twelfth Circuit properly held that the peremptory strike was motivated by discrimination. (R. at 32.) Using 25