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to Section One | to Arts & Entertainment
posted Friday, July 4 2014 - Volume 42 Issue 27
Ninth Circuit stands by heightened scrutiny decision
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Ninth Circuit stands by heightened scrutiny decision

by Mike Andrew - SGN Staff Writer

The Ninth Circuit Court of Appeals has rejected a request for en banc review of its decision in SmithKline Beecham v. Abbot Laboratories, a case in which a three-judge panel of the court ruled that individuals may not be excluded from jury pools because of their sexual orientation.

In this case, the Ninth Circuit reversed the decision of a U.S .District Court that allowed one party in a dispute between two pharmaceutical companies to challenge a Gay juror, because the lawsuit he would be hearing involved pricing for HIV medications.

More broadly, the Ninth Circuit's decision established a standard of 'heightened scrutiny' to laws that treat LGBT individuals differently from straight ones.

'[W]e are required by Windsor to apply heightened scrutiny to classifications based on sexual orientation for purposes of equal protection....' the panel said in its decision.

'[T]here can no longer be any question that gays and lesbians are no longer a 'group or class of individuals normally subject to 'rational basis' review.'

As a result, the court explained, 'when state action discriminates on the basis of sexual orientation,' a court 'must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status.'

Most laws that create groups or classifications of people must meet the standard of 'rational basis review.' In other words, they must show there is a legitimate reason for the law, and not mere bias or animus against a particular group.

Laws subjected to heightened scrutiny must show more, however. Those that classify based on race must show a compelling state interest for the classification, while others, like those based on sex, must show a lesser but still important state interest in doing so.

While the U.S. Supreme Court did not explicitly establish the heightened scrutiny standard in its Windsor decision striking down DOMA, the Ninth Circuit held the standard was implied in the language of the court's majority, who said that 'the purpose and effect' of DOMA was 'to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.'

Less than a month after the Ninth Circuit issued its decision on January 21, Nevada Attorney General Katherine Masto dropped her defense of Nevada's ban on same-sex marriage, having concluded that it could not withstand heightened scrutiny.

Several federal District Judges, in their decisions striking down state laws banning same-sex marriage, have said those laws do not even meet the standard of rational basis review, but are based solely on bias or animus against LGBT people.

Litigants are entitled to ask the whole circuit court to review decisions issued by panels of judges, but the court need not accept en banc review. In this case the Ninth Circuit elected to let the panel's ruling - including the standard of heightened scrutiny - stand.

Abbot Laboratories said it would not appeal the Ninth Circuit's decision to the U.S. Supreme Court, meaning that it will apply in all the states under the court's jurisdiction: Alaska, Arizona, Idaho, Montana, and Nevada, where there are pending marriage equality lawsuits, as well as in California, Hawaii, Oregon, and Washington, where same-sex marriages are already legal.

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