March 27, 2014is asking all the parties in SmithKline Beecham v. Abbott Laboratories to file briefs telling the court whether it should rehear the case en banc, with a larger panel of judges. The call apparently came from one or more judges on the court under a rule that allows any judge to call for rehearing on their own after the time expires for a party to ask for rehearing. The case involves a prospective juror who was peremptorily challenged based only on the fact that he’s gay. The Ninth Circuit held that under the Constitution that action is not allowed, and in the process it held that sexual orientation discrimination warrants a heightened form of judicial scrutiny. The heightened scrutiny holding shifts the burden to the government to prove why it should be allowed to discriminate based on sexual orientation.
AbbVie, a spin-off of Abbott Laboratories, had earlier said they won’t petition the Ninth Circuit to rehear the case with a larger panel of judges, nor would they seek Supreme Court review. After that decision, the Ninth Circuit itself decided that it may rehear the appeal and in its filing, it instructs all parties to file briefs within 21 days discussing their position.
If rehearing en banc is ultimately granted after all briefs are filed, the three-judge panel’s initial decision will be wiped out and will not remain precedent. This likely means that the circuit court’s determination that sexual orientation discrimination warrants heightened judicial scrutiny will be reconsidered. The larger panel, 11 judges in the Ninth Circuit, could still reach that same holding in its final decision, however.
The Ninth Circuit has said they will hold oral arguments in the Nevada case as soon as possible, though a date hasn’t been set. The Oregon case is in district court awaiting a decision on the merits.
Thanks to Kathleen Perrin for this filing