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Ninth Circuit denies ‘en banc’ review of ‘heightened scrutiny’ ruling for gays

Decision puts into effect a January ruling that laws which discriminate against gays -- including same-sex marriage bans – must satisfy a tougher constitutional test
Tuesday, June 24, 2014
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SAN FRANCISCO — A federal appeals court on Tuesday upheld an earlier decision by a three-judge panel which stated that gays and lesbians could not be excluded from jury duty on the basis of their sexual orientation, a ruling that for the first time applied “heightened scrutiny” to a case involving LGBT issues.

The U.S. Court of Appeals for the Ninth Circuit denied en banc review of the case of SmithKline Beecham v. Abbott Laboratories, putting into full effect a January ruling that laws which are claimed to discriminate against gays and lesbians — including state bans on same-sex marriage – must satisfy a tougher constitutional test, reports SCOTUSblog.

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 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 panel in that case found 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.

In the January decision, Justice Stephen Reinhardt wrote that the Supreme Court’s opinion striking down a section of the Defense of Marriage Act “refuses to tolerate the imposition of a second-class status on gays and lesbians.”

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Just weeks after the January decision, the state of Nevada said it would no longer defend its ban on same-sex marriage, because the court’s decision in the SmithKline Beecham case made the state’s arguments “no longer defensible.”

In Tuesday’s order, the circuit court said a majority of the appeals court judges did not vote to rehear the case en banc. In most circuits, an en banc hearing means all 15 of the circuit’s judges hear the case, rather than just a three-judge panel. But because of the size the Ninth Circuit, an en banc hearing consists of an 11-judge panel — the chief judge and 10 others selected by random draw.

The call for a vote on rehearing was unusual in that it was made by a judge on the court and not one of the parties in the case.

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