Heightened Scrutiny Standard Upheld in Ninth Circuit

In an action that presages a sweeping victory for marriage equality litigation in the states under the jurisdiction of the Ninth Circuit Court of Appeals, the circuit on June 24 announced it had declined a suggestion by one of its judges to reconsider a three-judge ruling in January that claims of sexual orientation discrimination must be evaluated using “heightened scrutiny.”

Given the scathing dissent to this decision by Judge Diarmuid Fionntain O’Scannlain, it seems likely he was the one who sought reconsideration.

Given that states must provide a compelling justification for laws that discriminate when they are subject to heightened scrutiny, the Ninth Circuit’s action is very good news for gay marriage litigants who have cases pending in that circuit. Legal observers generally agree that bans on marriage by same-sex couples cannot survive such a high standard of judicial review.

Refusal to reconsider judicial review approach in gay discrimination cases good news for marriage plaintiffs

The January heightened scrutiny ruling resulted from a lawsuit SmithKline Beecham brought against Abbott Laboratories in an HIV drug-pricing dispute, and involved Abbott’s use of a peremptory challenge in eliminating a gay man from the pool of prospective jurors. In an appeal to the Ninth Circuit, SmithKline argued that Abbott’s attorneys should not have been able to do that, and the panel agreed.

In 1986, the Supreme Court ruled that a lawyer could not use peremptory challenges to keep African Americans off juries, since this was discrimination based on what is known as a suspect classification — in that case, race. A few years later, the high court extended that ruling to sex, explaining that because sex discrimination claims must be examined under heightened scrutiny, a lawyer should not be able to keep a woman off a jury without providing proof that she was biased. When government discriminates based on race or sex, it has to have a valid, non-discriminatory justification.

SmithKline argued the same standard should be applied when a lawyer tries to eliminate somebody from serving on a jury because he is gay.

The difficult SmithKline had in making this claim is that on more than one occasion the Ninth Circuit ruled that sexual orientation discrimination claims are not subject to heightened scrutiny. The three-judge panel pointed out, however, that those cases predated last June’s Supreme Court ruling regarding the Defense of Marriage Act. The panel concluded that the DOMA decision changed everything.

In his majority opinion on DOMA, Justice Anthony Kennedy did not state that the court had applied heightened scrutiny, but the three-judge panel concluded that was the inevitable conclusion to be drawn from the ruling. As a result, the earlier Ninth Circuit precedents were no longer valid, the judges found.

Appeals in two marriage equality cases are currently before the Ninth Circuit, where oral arguments are scheduled for September. In Nevada, a district court ruling that denied marriage rights — issued before the DOMA ruling came down — is being appealed by the plaintiffs, while the State of Idaho has appealed the recent decision overturning its ban on gay marriage.

If heightened scrutiny applies, the appeals court is supposed to consider the marriage bans presumptively unconstitutional and place the burden on the government to show they substantially advance an important governmental interest. This reverses the customary situation in which laws are presumed constitutional, putting the burden on the plaintiffs to show there could be no rational justification for them.

There is virtually no dispute among legal analysts that if marriage equality cases are decided using heightened scrutiny, the plaintiffs will surely win. Therefore, the Ninth Circuit should easily reverse the district court’s decision in the Nevada case and affirm the marriage equality ruling in the Idaho case. In fact, after the January 21 heightened scrutiny decision in the SmithKline Beecham v. Abbott Laboratories case, Nevada’s attorney general and governor agreed the state could not survive an appeal if the heightened scrutiny standard stood. They withdrew their defense of the lower court’s ruling, leaving it to an intervening anti-gay organization to carry the appeal forward.

Marriage equality lawsuits are pending in the other non-marriage equality states within the Ninth Circuit — Alaska, Montana, and Arizona — and the trial judges in those cases will be bound by this Ninth Circuit precedent to apply heightened scrutiny. They could well issue summary judgments in favor of the plaintiffs even before the Ninth Circuit rules on Idaho and Nevada.

With marriage equality already the law in California, Washington, Oregon, and Hawaii, this portends a clean sweep in the Ninth Circuit.

Meanwhile, rulings could come any day from the Fourth Circuit in the Virginia case or the 10th Circuit in the Utah and Oklahoma cases, where oral arguments have already taken place, so the breakneck speed of marriage equality decisions shows no signs of abating.

O’Scannlain’s fervent dissent foresees all this, and he scolds his colleagues for refusing to reconsider the January panel’s decision. He accuses the panel of having misconstrued the DOMA ruling and failing to follow existing Ninth Circuit precedent, and that claim is not without merit since Kennedy’s ruling makes no explicit mention of heightened scrutiny and many lower courts and legal scholars have pointed out that the ruling’s doctrinal basis is not clear in the way one might wish.

Indeed, it is not implausible to argue that if the court applied heightened scrutiny it was because DOMA involved discriminatory treatment of marriages legal in the states where they were performed, and Supreme Court precedent recognizes the right to marry as a fundamental right. That could justify using heightened scrutiny to evaluate the federal government’s refusal to recognize marriages sanctioned by the states regardless of what level of scrutiny the high court deems appropriate in sexual orientation discrimination cases.

“Without even acknowledging the consequences of its decision, the panel has produced an opinion with far-reaching — and mischievous — consequences, for the same-sex marriage debate and for the many other laws that may give rise to distinctions based on sexual orientation, without waiting for appropriate guidance from the Supreme Court,” O’Scannlain wrote. “And in doing so, it plainly misread [the DOMA ruling], abandoned our own equal protection precedents, and disregarded our procedures for departing from settled constitutional doctrine.”

The panel’s action, he said, was “an exercise of raw judicial will.”

O’Scannlain, a Reagan appointee, is one of the most conservative judges on the Ninth Circuit. A total of 22 Ninth Circuit judges voted on his request for reconsideration, so it’s clear that he failed to win 12 votes, but beyond that the tally is unknown. Two other conservative judges, Jay Bybee and Carlos Bea, who were both appointed by George W. Bush, joined his written dissent, but others may have voted with him.

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