9th Circuit Refuses To Reconsider Sexual Orientation Discrimination Ruling

Big news from the 9th U.S. Circuit Court of Appeals! The now fully staffed court has denied a sua ponte request to reconsider their important ruling in SmithKline Beecham. That case is the about juror discrimination where the 9th Circuit ruled that sexual orientation is not a valid characteristic for removing a potential juror, by declaring that sexual orientation is a suspect classification that requires heightened scrutiny. A majority of judges on the 26-member court agreed that an en banc hearing was not warranted, while the three most conservative members of the court signed on to a 10-page decision dissenting in the decision of the court. Neither of the parties in the underlying dispute had asked the court to review the question of what standard of review sexual orientation should receive, that was instigated by an anonymous member of the 9th Circuit. The fact that the decision is now final means that in order to discriminate on the basis of sexual orientation in the 9th Circuit's jurisdictional area, an exceedingly persuasive reason has to be given. As  Joe Jervis says, this will almost certainly lead to marriage equality in the states of the 9th Circuit which do not have it yet: Alaska, Arizona, Idaho, Montana and Nevada.

SCOTUS Blog also discusses the implications of the permanence of SmithKline:

 Of the twelve federal appeals courts to confront the issue, ten have taken the position that challenges to laws which allegedly discriminate on the basis of sexual orientation should be analyzed only by the least-demanding standard — that is, “rational basis” review.   Using that standard, at least some courts have upheld bans on same-sex marriage. 

[...] 

In the cases now awaiting Ninth Circuit review, state officials are attempting to defend same-sex marriage bans only in the Idaho case.  State officials in Oregon and Nevada have given up the defense of such bans, and Hawaii has moved on its own to allow such marriages.   Because the panel’s decision in the SmithKline decision is now binding in that circuit, in the wake of denial of en banc review, it sets the standard for judging the state bans throughout the geographic region included in the Ninth Circuit.

The other appellate court to decide sexual orientation should receive heightened scrutiny is the 2nd U.S. Circuit, which did so in their ruling which struck down the Defense of Marriage Act in Windsor v United States, a decision the Supreme Court upheld last year (but did not address the level of review question).