- The Washington Times - Tuesday, June 24, 2014

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.

State officials defending their voter-passed marriage laws say sexual orientation cannot meet the tests for heightened-scrutiny protection, but that under rational-basis review, states can assert a right to keep marriage as the union of one man and one woman.

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