Noah Feldman, Columnist

Can Gays Be Kept Off Juries?

The last liberal lion is on the hunt again. Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals, the judge who struck down California’s Proposition 8, has issued an opinion holding that equal protection is violated when a lawyer uses a peremptory strike to keep a gay juror out of a case.

January 22, 2014 at 7:17 PM UTC

By Noah Feldman

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

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The last liberal lion is on the hunt again. Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals, the judge who struck down California's Proposition 8, has issued an opinion holding that equal protection is violated when a lawyer uses a peremptory strike to keep a gay juror out of a case. In so holding, Reinhardt formally maintained that, under the Supreme Court's decision i U.S. v. Windsor, gay people are entitled to heightened scrutiny from the courts when they are subjected to differential treatment.

The decision, SmithKline Beecham v. Abbott Laboratories, is both a landmark and an invitation for Supreme Court review. It poses one of the most fascinating and fundamental questions to arise in the wake of the court's gay marriage decision: Do gay people require special protection from the courts? Or does the historic decline of homophobia prove that profound discrimination against gay people is over?