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Defining a legal test for sexual orientation discrimination

A federal appeals court ruling that had appeared to make it harder for states to justify a ban on same-sex marriage, by raising the constitutional barrier to laws based on sexual orientation, may now be given a new look.   The U.S. Court of Appeals for the Ninth Circuit disclosed Thursday that one or more of its judges have sought to review the issue further, so the court called for new legal briefs.

This development in the Ninth Circuit case of SmithKline Beecham Corp. v. Abbott Laboratories (Circuit docket 11-17357) could be significant as federal appeals courts soon move into into several hearings on same-sex marriage.  A common issue in those cases will be how tough a constitutional test a ban on such marriages must satisfy.

In January, ruling in a pharmaceutical company’s civil antitrust lawsuit, a three-judge Ninth Circuit panel declared that discrimination on the basis of sexual orientation must be tested by “heightened scrutiny” — a more demanding standard than most courts (including the Ninth Circuit) have been using on that issue.

The panel said the Supreme Court had led the way toward applying that standard by its ruling last June in United States v. Windsor, striking down a denial of federal marital benefits to gay and lesbian couples who already are legally married under state law.  The Supreme Court had not said what test it was using there, but the Ninth Circuit said its reasoning pointed toward “heightened scrutiny” when equality was at issue.

Sexual orientation arose as an issue in the SmithKline case because that company’s lawyers had contended that, at the trial, attorneys for Abbott Laboratories had moved to bar from the jury a gay man, and had done so because of his sexual identity.  The panel decision found that maneuver to be unconstitutional.

Abbott Laboratories, which initially indicated it would ask the full Ninth Circuit to review that issue en banc, chose last month not to pursue a rehearing.  It thus appeared that the “heightened scrutiny” standard would now be binding law in the Ninth Circuit, and thus would be used next when that court reviews a Nevada ban on same-sex marriage.

In fact, the SmithKline decision convinced state officials in Nevada that they could no longer defend the state ban.  That case, though, is moving forward with other defenders of the ban.

Although Abbott Laboratories passed up its chance to seek further review, that did not end that possibility.  Now, at least one judge of the full Ninth Circuit has called for a vote on en banc review.  That will be taken after the two sides in the case file the new briefs, which are due three weeks from today.

If en banc review is set, that could mean that the hearing in the Nevada same-sex marriage case — on a date not yet set — would go forward with the state able to argue for the continued application of a lesser legal standard (“rational basis”), since that was the test established in the Ninth Circuit prior to the SmithKline ruling.  The lawyers for the same-sex couples’ case could, of course, make the argument that the “heightened scrutiny” standard should be applied in their case anyway, relying — as the panel did — on the Supreme Court’s Windsor opinion.

Perhaps, though, the Nevada case could be put on hold until after the standard-of-review issue is settled either by an en banc decision in SmithKline, or by a denial of en banc review.   Presumably, the Ninth Circuit will vote on the en banc question soon after the two sides’ further briefing.  Those briefs are due simultaneously by April 17.

Recommended Citation: Lyle Denniston, Defining a legal test for sexual orientation discrimination, SCOTUSblog (Mar. 27, 2014, 5:40 PM),