Metropolitan News-Enterprise


Wednesday, June 25, 2014


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Ninth Circuit Declines to Reconsider Gay Juror Ruling En Banc

Dissenting Juror Says Panel Opinions Puts Court One Step Away From Tossing Marriage Laws




The Ninth U.S. Circuit Court of Appeals yesterday declined to rehear en banc a case in which the panel ruled that a peremptory challenge based on a juror’s actual or perceived sexual orientation violates the Equal Protection Clause.

The denial came in a brief order by Chief Justice Alex Kozinski. Seven of the court’s judges—Susan Graber, M. Margaret McKeown, Kim M. Wardlaw, Milan D. Smith Jr., Paul Watford, John Owens and Michelle T. Friedland—recused themselves from voting on the request, which was initiated by a judge of the court and not by a party in the antitrust case between pharmaceutical companies GlaxoSmithKline and Abbott Laboratories over HIV medications.

The decision not to send the case to an 11-judge en banc panel drew a stinging dissent from Judge Diarmuid O’Scannlain. The dissenter, joined by Judges Jay Bybee and Carlos Bea, warned that the ruling will have “far reaching” and “mischievous” consequences beyond how jurors are selected.

The panel—Judges Mary M. Schroeder, Stephen Reinhardt, and Marsha S. Berzon—held in January, based on United States v. Windsor (2013) 133 S.Ct. 2675, that sexual orientation is now a suspect classification to which heightened scrutiny must be applied. That conclusion “is perhaps all but this court’s last word on the question whether the Constitution will require States to recognize same-sex marriages as such—a question the Supreme Court in Windsor consciously decided not to answer,” O’Scannlain wrote.

“The opinion’s unprecedented application of heightened scrutiny to a peremptory strike of a juror who was perceived to be gay bears significant implications for the same-sex marriage debate and for other laws that may give rise to distinctions based on sexual orientation,” O’Scannlain wrote. “Indeed, today’s opinion is the only appellate decision since…Windsor…to hold that lower courts are ‘required by Windsor to apply heightened scrutiny to classifications based on sexual orientation for purposes of equal protection.’ Such holding is wrong, egregiously so. Because of the danger that district courts will be misled by the opinion’s sweeping misinterpretation of Windsor, it is most unfortunate that we denied rehearing en banc.”

‘Mischief’ Cited

The ruling in SmithKline Beecham Corporation v. Abbott Laboratories, 11-17357, which received worldwide attention when it came down, has already caused “mischief” in the gay-marriage debate, O’Scannlain said.

He noted that the governors and attorneys general of Nevada and Oregon have taken the position before the Ninth Circuit that they can no longer defend their state’s same-sex marriage bans, in light of the panel ruling. The laws in both cases are currently being defended by intervenors.

“In the view of many, the application of heightened scrutiny in this case precludes the survival under the federal Constitution of long-standing laws treating marriage as the conjugal union between a man and a woman,” he wrote. “As the first opinion among our sister circuits to apply heightened scrutiny to an equal protection claim in light of Windsor, it is likely a bellwether—or, perhaps, a premonitory harbinger.”

The ruling also puts the Ninth Circuit “out on a limb” and “on the short end of a 10-2 split among our sister circuits,” O’Scannlain warned.

‘Abandoned Precedents’

The court should have waited “for appropriate guidance from the Supreme Court,” he wrote. Instead, “it plainly misread Windsor, abandoned our own equal protection precedents, and disregarded our procedures for departing from settled constitutional doctrine.” 

Besides the Oregon and Nevada cases, there are two other same-sex marriage cases on the Ninth Circuit docket, one from Hawaii and one from Idaho. In the Idaho case, a district judge struck down the state’s ban, and the state is appealing.

In the Hawaii case, a district judge upheld the ban, but the Legislature later passed a law making same-sex marriage legal in the state. The plaintiffs and the state have asked that the state’s appeal be dismissed as moot, but an intervenor is arguing that the appeal is not moot because the “marriage redefinition bill” is being challenged in state court as a violation of the Hawaii Constitution.


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