- Number-crunchers put GOP chances of retaking Senate at 60 percent: report
- Ohio sheriff sends bill to Mexico for cost of jailing illegals
- Fla. voters’ support for medical marijuana bodes well for ballot measure: poll
- Keith Urban concert ends in ‘nutso’ chaos, with dozens arrested, injured
- Very religious still lean toward GOP, reflecting long-term patterns, Gallup poll shows
- Fist bump becoming all the rage for germ-wary handshakers
- Tennessee storms ravage counties, wreck 10 homes
- Chinese police tear down church cross in religion crackdown
- Iraqi Christians rally at White House: ‘Obama, Obama, where are you?’
- Maine police find wife, husband, 3 children dead in home
Court bans discrimination against gays for jury pool
Question of the Day
In a victory for gay rights advocates that could have far-reaching legal effects, a federal appeals court Tuesday let stand a ruling that gays cannot be dismissed from a jury pool because of their sexual orientation.
The order by the 9th Circuit Court of Appeals means a January lower court ruling that says gays and lesbians must be given the “highest protections” when their rights are in dispute will stand.
Three judges on the 9th Circuit wrote a scathing dissent to the rejection of the decision, saying their colleagues were making a “regrettable” error.
The ruling in SmithKline Beecham v. Abbott Laboratories only applies to the nine Western states in the 9th Circuit, but it has already prompted Nevada’s governor to drop his defense of that state’s traditional marriage law and is expected to affect marriage cases in other circuits as well.
The original SmithKline case involved a dispute over marketing and pricing of HIV/AIDS drugs.
During jury selection, an Abbott lawyer declined to accept an apparently gay man as a juror. A SmithKline lawyer challenged that decision, saying the prospective juror all but identified himself as gay by talking about his male partner, and the Abbott team must have rejected him because they didn’t want any gay people on the jury.
Both Abbott’s lawyers and the district court judge contested the SmithKline lawyer’s claim, and the case proceeded. The jury returned a mixed verdict on some charges and a $3.8 million award from Abbott to SmithKline. Both companies appealed to the 9th Circuit.
In January, a three-judge appellate panel ruled unanimously that the jury decision should be thrown out and the case retried — this time, with the understanding that no one can be blocked from a jury because of their sexual orientation. “We hold that such classifications [based on sexual orientation] are subject to heightened scrutiny,” the three-judge panel wrote.
A few weeks later, at least one 9th Circuit judge questioned the SmithKline ruling and asked for the case to be reheard by a much larger panel of the 9th Circuit judges.
In the Tuesday order, however, the court said the call for an en banc rehearing “failed to receive a majority” of judges’ votes and is rejected.
Judge Diarmuid F. O’Scannlain, joined by Judges Jay S. ByBee and Carlos T. Bea, dissented, saying the 9th Circuit’s holding in SmithKline on heightened scrutiny for sexual orientation “is wrong, egregiously so.”
“No three-judge panel has the power to overrule existing 9th Court precedent,” the dissenting judges wrote, noting that other federal circuits and the Supreme Court use the “rational-basis review” standard for sexual orientation discrimination claims.
In their unanimous January ruling, 9th Circuit Court Judges Mary M. Schroeder, Stephen Reinhardt and Marsha S. Berzon agreed that the Supreme Court “did not expressly announce the level of scrutiny” for sexual orientation in its Windsor case ruling last June.
“[B]ut an express declaration is not necessary,” they wrote, and by considering what the Supreme Court “actually did” in striking down part of the federal Defense of Marriage Act, it’s clear they established that heightened scrutiny be used in cases of equal protection claims and sexual orientation.
Gay rights groups have been fighting for sexual orientation to be classified under heightened-scrutiny treatment, as it will greatly assist them in winning discrimination cases.
© Copyright 2014 The Washington Times, LLC. Click here for reprint permission.
About the Author
Cheryl Wetzstein covers family and social issues as a national reporter for The Washington Times. She has been a reporter for three decades, working in New York City and Washington, D.C. Since joining The Washington Times in 1985, she has been a features writer, environmental and consumer affairs reporter, and assistant business editor.
Beginning in 1994, Mrs. Wetzstein worked exclusively ...
- Events honoring 20th National Parents' Day reaffirm family
- '50 Shades' movie trailer outrages anti-porn groups
- Tougher clinic rules lead to drop in Texas abortions
- David Tyree hired by Giants in a move bashed by gay-rights groups
- U.S. social and economic trends on worrisome track, survey finds
Latest Blog Entries
- Gay therapy ban author seeks Calif. House seat
- Transgender 'bathroom law' gets 5,000 more signatures
- Pro-life, stem-cell bill signed into law by Kansas Gov. Sam Brownback
- N. Dakota lawmakers approve tough abortion bill
- Pope Benedict XVI's successor should allow priests to get a new title: Husband, poll finds
TWT Video Picks
By Mark Davis
The nation founders, the Lone Star State thrives
- CURL: Obama, staffers not even pretending any more
- Tennessee Gov. Haslam slams White House for secret dump of illegals in his state
- Rahm Emanuel: Send illegal immigrant shelter kids to Chicago
- 'Pocket drones': U.S. Army developing tiny spies for the next big war
- D.C. seeks stay in order striking down ban on handguns in public
- Family of Marine killed in Afghanistan pushes back against cover-up
- HAYDEN: Intelligence, evidence and the case against Russia
- Tennessee storms ravage counties, wreck 10 homes
- Libya now nation at risk with weak U.S. influence; embassy closes as chaos grows
- Washington Times strikes content and marketing partnership with Redskins
Obama's biggest White House 'fails'
Celebrities turned politicians
Athletes turned actors
20 gadgets that changed the world
Fighting in Iraq