Neither side in an important test case on the constitutional standard that courts should use in gay rights lawsuits supported a new hearing on that issue in the U.S. Court of Appeals for the Ninth Circuit. Amid new filings on Thursday, one side did call for en banc review, but not on the standard for reviewing claims of discrimination based on sexual orientation.
The case of SmithKline Beecham Corp. v. Abbott Laboratories involves a civil antitrust dispute between drug companies, but it has gained more prominence because of its potential impact on court review of the constitutionality of state bans on same-sex marriage. Whether the Ninth Circuit will now move on to review the proper constitutional test remains uncertain in the wake of the new papers filed in that court. The two documents can be found here and here.
A three-judge panel of the Ninth Circuit on January 21 ruled in the SmithKline case that it is unconstitutional discrimination to bar a potential juror in a civil case because that individual was gay. In reaching that result, the panel applied a “heightened scrutiny” analysis, saying that was now necessary after the Supreme Court’s decision last June in United States v. Windsor. (The Supreme Court did not establish a standard of review in that case, which struck down a part of the federal Defense of Marriage Act, but the Ninth Circuit panel read its sweeping language as pointing to more rigorous review when gay rights are at issue.)
After the panel ruling, Abbott Laboratories, which lost the case, had indicated that it might seek en banc review, but then allowed the time to make such a request lapse without doing so. However, last month, one or more judges on the Ninth Circuit called for a vote on whether to rehear the case en banc. At that point, the panel asked Abbott and SmithKline lawyers to file briefs on whether to do so.
SmithKline’s filing opposed further review, arguing that there was no split among appeals courts on the specific issue — sexual orientation bias in jury selection; that the court should await a same-sex marriage case before deciding whether to apply the more demanding standard in that situation; that the issue will seldom come up in civil cases; that applying the ruling in other cases will not be difficult as a practical matter; and that, in any event, the panel ruling was right.
Abbott’s new brief said on its first page that it “does not request review of the panel’s holding that heightened equal protection analysis applies to classifications based on sexual orientation.” It also said that it did not object to the part of the decision that, in principle, extended the bar to discrimination in jury selection to the removal of potential jurors for reasons of sexual orientation.
However, Abbott did call for review by the full court on how that second part of the ruling should actually be applied. It said there were serious privacy issues on whether potential jurors should be questioned about their sexual identities. And it said the panel decision had not made the kind of analysis of who was excluded to sit on this jury and who was selected, which it said was a necessary basis for any finding of discrimination in the selection process.
Those issues, the Abbott brief said, “are critically important — both doctrinally and practically — and will affect every jury trial in this Circuit.”
With those documents now on file, the full Ninth Circuit presumably will soon cast a vote on whether to reconsider the case en banc. It will take a majority vote of the active Circuit judges to grant such review.
Meanwhile, that circuit does have pending separately before it a test of the constitutionality of a state ban on same-sex marriage — from the state of Nevada. With the new uncertainty over the SmithKline case, it is unclear what standard of review will be applied in the Nevada case as it moves along in the Ninth Circuit.
If en banc review were to be denied, or if granted and the panel decision were to be upheld, the more rigorous standard for gay rights cases presumably would be binding throughout the Ninth Circuit.
“Heightened scrutiny” is considerably more difficult to satisfy than the “rational basis” test that, up to now, has been used by the Ninth Circuit in judging official actions that are challenged as biased against gays and lesbians. Only one other federal appeals court — the U.S. Court of Appeals for the Second Circuit — uses the higher standard in such cases.
In the recent series of rulings by federal trial court judges striking down state bans on same-sex marriage, the judges have nullified those laws using only the “rational basis” test, finding that states could not even muster enough justification to meet that least-demanding standard.
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