The Ninth Circuit Court of Appeals today denied the request for an en banc review of the January three-judge ruling that applied heightened scrutiny to a case involving LGBT issues. One month after the earlier ruling, Nevada Attorney General Katherine Masto withdrew her defense of her state’s ban on same-sex marriage, saying that the application of heightened scrutiny removed any chance of the ban’s survival. Three judges opposed the denial:
(Tipped by JMG reader Todd)
UPDATE: More from Chris Geidner at Buzzfeed.
While most laws that create groups or classifications must merely show there is a rational basis, or a legitimate reason, for the law, laws subjected to heightened scrutiny must show more. Some, like 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.
Although the Supreme Court has not explicitly ruled on the question of what level of scrutiny sexual orientation claims should receive, the initial 9th Circuit decision in the case, which the court let stand on Tuesday, stated that the Supreme Court’s decision in United States v. Windsor striking down part of the Defense of Marriage Act “established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review.”
In today’s order, the 9th Circuit announced that a majority of the appeals court judges did not vote to rehear the case en banc. 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. The decision means that the ruling will stand unless the Supreme Court were to review the decision, which Abbott has said it will not seek.
Today’s denial could speed marriage equality in all of the Ninth Circuit, which includes Alaska, Arizona, Idaho, Montana, and Nevada as well as the four states already there: California, Hawaii, Oregon, and Washington.