Earlier this week, the U.S. 9th Circuit Court of Appeals refused to grant
en banc review to an
earlier decision by a 3-judge panel that concluded heightened scrutiny must be applied to equal protection claims based on sexual orientation. In
SmithKline Beecham Corp. v. Abbott Laboratories, (9th Cir., June 24, 2014), the court reported that the call for
en banc review did not receive a majority vote. However Judge O'Scannlain, joined by Judges Bybee and Bee, filed a dissent to the refusal to review, saying in part:
This case ... came to our court in the posture of an appeal from a simple juror selection ruling during trial. Sadly, it has morphed into a constitutional essay about equal protection and sexual orientation.... The opinion’s unprecedented application of heightened scrutiny to a peremptory strike of a juror who was perceived to be gay bears significant implications for the same-sex marriage debate and for other laws that may give rise to distinctions based on sexual orientation.
Indeed, today’s opinion is the only appellate decision since United States v. Windsor ... to hold that lower courts are “required by Windsor to apply heightened scrutiny to classifications based on sexual orientation for purposes of equal protection.” ... Such holding is wrong, egregiously so. Because of the danger that district courts will be misled by the opinion’s sweeping misinterpretation of Windsor, it is most unfortunate that we denied rehearing en banc.
SCOTUS Blog has more on the decision.
