A federal appeals court on Tuesday put into full effect a ruling that laws that are claimed to discriminate against gays and lesbians — including state bans on same-sex marriage — must satisfy a tougher constitutional test. The U.S. Court of Appeals for the Ninth Circuit, over the dissents of three of its judges, denied en banc review of the case of SmithKline Beecham v. Abbott Laboratories.
Although the SmithKline decision involved a jury trial of an antitrust dispute between two drug-making companies, it focused on exclusion of a gay juror, and the three-judge circuit panel’s decision in that case clearly was more important in establishing a “heightened scrutiny” test in gay rights cases. The test thus will apply in that circuit to four pending cases involving same-sex marriage — from Hawaii, Idaho, Oregon, and Nevada.
This was the first federal appeals court decision to interpret the scope of the Supreme Court’s decision a year ago in United States v. Windsor, and the Ninth Circuit panel found in Windsor a mandate for judging laws that treat homosexuals less favorably by a more demanding standard. One other appeals court — the U.S. Court of Appeals for the Second Circuit — had adopted the same tougher standard, but it did so before the Supreme Court’s decision in Windsor.
Circuit Judge Diarmuid F. O’Scannlain, in a ten-page dissenting opinion joined by Circuit Judges Jay S. Bybee and Carlos T. Bea, denounced the SmithKline panel decision as “an exercise of raw judicial will” and advised other courts that it would be “most unwise” to rely on the panel’s reasoning on the standard of review.
That issue, the dissenters argued, is one of “exceptional importance” that should not have been decided by an appeals court panel before getting guidance from the Supreme Court. The dissenters suggested, though, that this particular case was not likely to go on to the Supreme Court to test the issue, because neither side in the case had asked for en banc rehearing on the standard-of-review issue. “This case may end here,” the dissenters commented. (An unidentified judge of the Ninth Circuit had called for a vote on en banc review, and that failed to get a majority.)
Of the twelve federal appeals courts to confront the issue, ten have taken the position that challenges to laws which allegedly discriminate on the basis of sexual orientation should be analyzed only by the least-demanding standard — that is, “rational basis” review. Using that standard, at least some courts have upheld bans on same-sex marriage.
Although the Supreme Court in recent years has issued a series of rulings favorable to gay rights claims, the Justices have never established a specific constitutional test for use in such cases. They did not do so last June, when the majority in the Windsor decision struck down a key part of the federal Defense of Marriage Act — a provision that had barred federal benefits for married couples to same-sex couples who were legally married under state laws.
The majority in the Windsor decision also had stressed that it was not ruling on the validity of state laws or constitutional provisions allowing marriage only between opposite-sex couples. Even so, every federal trial judge — and some state judges, too — who has ruled on same-sex marriage bans since the Windsor decision has struck them down, relying heavily upon the main opinion in Windsor by Justice Anthony M. Kennedy.
So far, none of the new rulings on such bans has been decided on appeal, but rulings at the appeals court level are expected shortly from the Fourth Circuit, in a Virginia case, and the Tenth Circuit, in cases from Oklahoma and Utah.
In the cases now awaiting Ninth Circuit review, state officials are attempting to defend same-sex marriage bans only in the Idaho case. State officials in Oregon and Nevada have given up the defense of such bans, and Hawaii has moved on its own to allow such marriages. Because the panel’s decision in the SmithKline decision is now binding in that circuit, in the wake of denial of en banc review, it sets the standard for judging the state bans throughout the geographic region included in the Ninth Circuit.
Although cases at the federal appeals court level are generally moving on expedited schedules, there is no definite timetable on when such a case will reach the Supreme Court. It does seem likely, however, that one or more cases will get to the Justices for action in the new Term that starts in October. The current Term is expected to end next week, and the Court would not be taking final action in any case over its summer recess.
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