In January, a Ninth Circuit panel ruled in a gay juror discrimination case that laws that single out gays and lesbians warrant heightened scrutiny. Judge Reinhardt, who wrote the majority opinion, stated that this was correct because of the SCOTUS Windsor decision issued last June.
Abbott Labs, the losing party in the case, did not ask for review en banc, however under Ninth Circuit procedures, any judge on the Ninth Circuit can ask for en banc review (an eleven member panel). Therefore, at least one judge has asked that the ruling be reviewed (I'm looking at you, Judge O'Scannlain). So, the Ninth Circuit ordered briefing on whether or not to rehear the case en banc late last month.
Scottie Thomaston of Equality on Trial writes:
The case involves a juror who was dismissed because of his sexual orientation, in a case involving a drug that treats HIV. The Ninth Circuit held that, like race and sex, sexual orientation is a classification that warrants a heightened form of judicial scrutiny. In other words, the burden shifts in cases challenging a classification or law based on sexual orientation: in those cases, the people defending the law have to prove that it’s substantially related to an important government objective; in the more lenient form of review, rational basis, it would be on the gay person challenging the classification to prove that all the reasons given for it in court aren’t rational.
The Ninth Circuit reviewed the Supreme Court’s decision in United States v. Windsor, concluding that although the Court didn’t say what form of review it was using, they analyzed it under a framework that’s typically associated with higher than usual scrutiny.
AbbVie, a spin-off of Abbott Labs, had previously said they wouldn’t challenge the decision, either in the Ninth Circuit or the Supreme Court. In its new filing, the company says that en banc review is warranted because “the issues presented are critically important—both doctrinally and practically—and will affect every jury trial in this Circuit.”
SmithKline opposes the rehearing. Scottie further states:
SmithKline opposes rehearing. “The panel decision does not create any conflict with Ninth Circuit precedents or other courts of appeals’ decisions,” they wrote, and further, “[p]rohibiting jurors from being struck based on their sexual orientation does not pose practical implementation problems—let alone problems that should give this Court pause before protecting an obvious constitutional right.”
The briefs have been received from both parties to the lawsuit, and now the Ninth Circuit judges will vote on whether to grant rehearing en banc for this case. My guess is that they will vote not to rehear this case. We'll find out in the next few weeks.
Only one other circuit has granted gays and lesbians heightened scrutiny with regard to laws that single them out -- the US Court of Appeals for the Second Circuit.
In the meantime, the marriage equality case out of Nevada, Sevcik v Sandoval, has not been scheduled for oral arguments yet (to my knowledge). They could be awaiting a decision about this case. Heightened scrutiny would make it much more difficult to affirm the decision below that Nevada's marriage amendment is constitutional. Stay tuned.