Ninth Circuit Court Of Appeals Might Review “Heightened Scrutiny” Ruling

In late January, a three-judge panel of the Ninth Circuit Court of Appeals invoked “heightened scrutiny” in its ruling that a gay juror had been improperly booted off the jury in a price-fixing lawsuit between two HIV pharma giants. As no federal court had previously applied heightened scrutiny to cases involving LGBT people, the establishment of that precedent has been widely hailed as a major setback for the enemies of civil equality.

In fact, just a couple of days after that ruling, Nevada Attorney General Catherine Masto withdrew her defense of that state’s marriage ban, saying that in light of the Ninth Circuit’s application of heightened scrutiny in the gay juror case, she could see no chance of  winning in the same court. The deadline to file an en banc appeal of the three-judge ruling to the full Ninth Circuit passed at the beginning of this month, with the losing side in the gay juror case saying, “AbbVie recognizes that the implications of the Court’s findings extend
far beyond the underlying case. For that reason, we chose not to

So that’s that, right? Actually, maybe not. Va SCOTUSblog:

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. [snip]

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.

Now we stand by to see what Catherine Masto does. (Tipped by JMG reader Matthew)