This week, the 9th Circuit took this issue on. SmithKline Beecham v. Abbott Laboratories is a case of two giant drug companies fighting each other over what I’m sure is already obscene profits involving the sale of an anti-HIV drug. In the suit, GlaxoSmithKline accuses Abbott Laboratories of antitrust, contract, unfair trade practice (UTPA) claims, and instigating World War I by shooting the archduke. The usual stuff.
But the underlying battle in the case involved the pricing of HIV medications, a big issue in the gay community. You know the score here. The drug companies are gouging HIV and AIDS patients which would be beyond criminal except, let’s face it, their ingenuity has saved countless lives. While hating on pharmaceutical companies as I am wont to do, you have to keep in mind the life saving and pain saving work they have done.
The Critical Facts at Issue in SmithKline Beecham v. Abbott Laboratories
In voir dire, Abbott struck a gay juror, presumably because Abbott would look like the bad guy in this case from the “keeping price of these drugs down” perspective and figured anyone gay would be predisposed to find against them. How did Abbott’s lawyer know he was gay? In voir dire questioning, the juror referred to his partner using the pronoun “he”. So Abbott used their first strike on this juror. Glaxo challenged the strike, citing the only juror strike case anyone remembers: Batson v. Kentucky. That case found that juror strikes may not be used to exclude jurors based on race because it violated the Equal Protection Clause. So the question is whether the logic of Batson could be applied to gays.
The trial court judge then quickly carries the water for Abbott’s counsel, explaining all of the reasons why it is permissible to strike a juror because he is gay. Incredibly, Abbott’s counsel then goes on to profess uncertainty whether the prospective juror was gay. But the judge cuts them off and lets the ruling stand, saying that she would allow Abbott’s strike and would reconsider her ruling if Abbott struck other gay men. Maybe the court’s rule was you get one free gay strike.
The jury found for Abbott on the antitrust, UTPA, and the killing the archduke claims, but did find for Glaxo on a breach of contract claim and awarded over $3 million in damages. Naturally, both parties appealed.
The 9th U.S. Circuit Court of Appeals in San Francisco ordered a new trial because Abbott excluded the gay juror. His rationale? Under Supreme Court’s decision in U.S. v. Windsor, the heightened scrutiny standard should be extended to gays when they are treated differently.
My Opinion on This
My first reaction is to cheer this decision. In massive numbers, from Pope Francis on down, people are realizing how wrong the historic discrimination against gays has been and still is. But I think the 9th Circuit is kidding itself if it thinks there is precedent out there that supports this.
I think the 9th Circuit would have been better served by saying, “This is an issue of first impression. Discrimination is wrong. Supreme Court, if you disagree, do your thing. Otherwise, this is the law in the 9th Circuit.”