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SmithKline Beecham v. Abbott Labs, Ninth Circuit case involving LGBT juror discrimination, won’t be challenged

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Ninth Circuit Court of Appeals
Ninth Circuit Court of Appeals
The Ninth Circuit’s three-judge panel decision in SmithKline Beecham v. Abbott Laboratories will remain binding precedent in the Ninth Circuit, after the losing side, Abbott Laboratories, has declined to petition the Ninth Circuit for rehearing en banc, with a larger panel of judges. The time to file that request expired yesterday.

The case involved a prospective juror who was struck from the jury pool when he revealed that he’s gay, in a case related to HIV medications. That move was challenged under the theory that an individual can’t be removed from a jury because of their sexual orientation, just as the Supreme Court has held that the same situation violates equal protection principles when it’s based on race or sex. In order to reach that decision, the Ninth Circuit first had to find that sexual orientation claims have to be reviewed under a heightened form of judicial scrutiny. (This is, to put it simply, because the standard for removing someone from the jury pool suggests that someone can’t be reviewed unless they’d be subject to rational basis review, the most lenient standard, which is not usually applied to those minority groups who face more discrimination.)

The Ninth Circuit found that the Supreme Court in United States v. Windsor actually applied a heightened form of judicial scrutiny to sexual orientation claims, without specifically saying that’s what they were doing. Since the Ninth Circuit found that a higher authority addressed that point, they adopted that form of judicial scrutiny, which essentially shifts the burden of proof to the state to prove its case against the individual bringing his or her case.

In Nevada and Oregon, the state attorneys general have refused to defend the marriage laws of those states, partially based on the SmithKline holding.

The Human Rights Campaign (HRC) issued a statement reporting on this new development and adding yet another: there will be no petition for review to the Supreme Court, asking them to hear the case. The HRC’s release is here:

WASHINGTON – In January, the U.S. Court of Appeals for the Ninth Circuit ruled in a pharmaceutical contract dispute, Abbott Laboratories v. SmithKline Beecham, that it violates the U.S. Constitution’s guarantee of equal protection to exclude someone from jury service because of his or her sexual orientation. In doing so, the court also concluded that discrimination based on sexual orientation should be subject to heightened scrutiny, a higher standard of judicial review that requires a stronger justification for laws and policies that treat gays and lesbians differently. Only days after the Ninth Circuit’s decision, the Attorney General of Nevada ended the state’s defense of its marriage ban in another case before that court, concluding that Nevada’s justifications for excluding same-sex couples from marriage could not withstand that higher level of review.

Yesterday, the deadline passed for AbbVie (the pharmaceutical spin-off of Abbott Laboratories that is a party in this litigation) to seek review of the January decision by a larger panel of the Ninth Circuit. Furthermore, HRC has learned that AbbVie will not seek review by the U.S. Supreme Court.

“AbbVie’s decision not to appeal this ruling may turn out to be a pivotal moment in the quest for marriage equality in every state in this country and greater constitutional protections for all LGBT Americans,” said HRC President Chad Griffin. “We thank the company for standing on the right side of history.”

This decision means that the heightened scrutiny holding in the case will be binding precedent in the Ninth Circuit Court of Appeals, and likely won’t change unless the court modifies the holding itself of it’s superseded by a later Supreme Court case.

In briefing for Sevcik v. Sandoval, Lambda Legal’s challenge to Nevada’s same-sex marriage ban, there appeared to be some questions over whether the SmithKline decision will impact the case. The same issue is present in Oregon, also in the Ninth Circuit. But with the decision to not seek rehearing or Supreme Court review, heightened judicial scrutiny will remain the standard of review for laws that classify on the basis of sexual orientation.


  • 1. Chris M.  |  March 7, 2014 at 6:25 pm

    Heightened scrutiny across the 9th! That's awesome!

  • 2. Rick O.  |  March 7, 2014 at 6:44 pm

    Perhaps this throws cold water on further AZ 1062 – type bills?

  • 3. Scottie Thomaston  |  March 7, 2014 at 6:54 pm

    I'm not really sure. Someone who's a lawyer should comment but those types of laws don't seem to me like an "equal protection" issue. They just allow religious exemptions I think they'd be challenged in a different way altogether. But like I said, someone else who's more qualified should answer.

  • 4. Eric  |  March 7, 2014 at 7:01 pm

    It's more of an establishment issue, exemptions granted only to the religious.

  • 5. Sagesse  |  March 8, 2014 at 7:35 am

    Not a lawyer either, but Justice Souter once said that one of the roles of the Supreme Court (and therefore the federal courts) is to adjudicate when constitutional protections are in conflict with each other. Does your freedom of religion trump my right to equal protection of the law… or privacy, or liberty, or the fundamental right to marry… or the right to use contraception and have my employer's health plan pay for it.

  • 6. Kevin  |  March 8, 2014 at 2:39 pm

    Yes, on its face the issue raised would seem more 1st Amendment than 14th. Nevertheless, it seems pretty obvious that the religious language is mere pretext for discriminatory behavior than equal protection claims could apply.

  • 7. Lymis  |  March 8, 2014 at 3:55 am

    It should certainly throw cold water on bills that specifically granted religious exemptions only in regards same-sex weddings or same-sex couples. It seems less certain that in and of itself it would throw water on broader exemptions – though those are (I hope) likely to fail on their own for other reasons.

  • 8. George F.  |  March 9, 2014 at 9:30 am

    Unfortunately the two issues aren't exactly the same. The Ninth Circuit's heightened scrutiny analysis applies to Equal Protection cases, which involve discrimination by the government (federal, state, and local). AZ 1062 primarily concerns private actors (restaurants, bakers, photographers, etc.) and whether they can refuse to serve certain customers on the basis of religious beliefs. Equal Protection could possibly apply here if Arizona enacted that law (which is facially neutral) with a discriminatory purpose, but this is difficult to prove. More likely, the courts would analyze a challenge to AZ 1062 under the Establishment Clause. There is a lot of academic discussion about whether religious exceptions that impose externalities (extra costs) on third parties are an unconstitutional establishment of religion.

  • 9. Kevin  |  March 10, 2014 at 9:13 am

    Except in this case the government action is the passage of the law itself. I still think it's possible to eke out an Equal Protection case here.

  • 10. ebohlman  |  March 12, 2014 at 1:19 am

    There's no precedent that I'm aware of saying that a particular class of people is entitled to statutory protection against discrimination by private parties, only (Romer) that a government can't single out one particular currently-unprotected class and make it more difficult for them to seek such statutory protection than other such classes.

  • 11. davep  |  March 7, 2014 at 7:10 pm

    Excellent. Case CLOSED!

  • 12. DavidAZ  |  March 7, 2014 at 7:59 pm

    At a minimum this is a HUGE legal advance for full LGBT equality across the entire 9th Judicial District. Virtually no state marriage ban in the 9th district can withstand a heightened scrutiny defense. They will fall swiftly in either a sweeping decision by the court or almost as fast on a state by state basis. Personally I prefer the "sweeping" outcome. And soon.

  • 13. Art Leonard  |  March 7, 2014 at 8:11 pm

    But it's not final until the S. Ct. says so. If the 9th Circuit rules against Nevada in Sevcik, the state will petition the Supreme Court for review and will seek a stay pending review.

  • 14. Chris M.  |  March 7, 2014 at 8:16 pm

    They could overturn Sevcik on rational basis to avoid putting SCOTUS on the spot with respect to heightened scrutiny.

  • 15. DavidAZ  |  March 7, 2014 at 9:03 pm

    I'm not convinced Nevada would appeal. I think their state pols wants to see this whole sorry business in their rear view mirror and this is their out. If not, they've still got to get around Kennedy at SCOTUS.

  • 16. grod  |  March 7, 2014 at 9:09 pm

    Art, does the state not need to be a party to the circuit appeal to appeal to the Supremes? Governor Sandoval and the AG said "It has become clear that this case is no longer defensible in court" and withdrew its defense. However, if a year ago December, the Coalition for the Protection of Marriage could petition the Supreme Court for Cert before Judgment [which was denied on June 27], why would they not do it again?

  • 17. Dr. Z  |  March 8, 2014 at 5:15 am

    If I'm remembering correctly, at the time when the CPM petitioned SCOTUS the Hollingsworth decision hadn't been handed down yet, and the Ninth had already ruled on appeal that Protect did have standing (reversed by SCOTUS.) Things look very different now.

  • 18. Scottie Thomaston  |  March 8, 2014 at 11:42 am

    The state is still a party. They just withdrew their opening brief and are not participating. Think of the DOJ in Windsor. They petitioned SCOTUS for review even though they weren't even in opposition to the district court and Second Circuit opinions.

  • 19. Scottie Thomaston  |  March 8, 2014 at 11:40 am

    But they'll review Sevcik, not this particular case. And as I mentioned in my post, the Supreme Court can issue a superseding opinion on the question of heightened scrutiny in any case, but the SmithKline case can't go further.

  • 20. Pat  |  March 7, 2014 at 10:48 pm

    And by the way, when will the 9th circuit FINALLY schedule a hearing date for the Sevcik appeal? All the briefing is complete and this court seems desperately slow!! Let's get this over with.

  • 21. Robert J. Morris  |  March 7, 2014 at 10:59 pm

    I believe they are waiting for final disposition of the lawsuit in Hawai'i. They are considering the two cases jointly. Representative Bob McDermott filed suit to stop the Special Session of the legislature that legalized same-sex marriage. He lost in the trial court, but his time for appeal to the Hawai'i Supreme Court may not yet have expired. The Plaintiffs asked the 9th Circuit to put things on hold until that was finalized. It's a good procedural move.

  • 22. Zack12  |  March 7, 2014 at 11:03 pm

    Bob McDermott is the face of the lawsuit but Mike Gabbard is behind everything that happened during the horror show we saw last fall and everything going on now in regards to the lawsuit.
    He is the one who led the charge to put the ban in place to begin with, I suspect if not for his daughter, he would be a LOT more vocal then he is on this.

  • 23. JayJonson  |  March 8, 2014 at 7:54 am

    Isn't the Hawaii suit moot now that the state has adopted marriage equality. The state suit challenging the legislative vote was summarily dismissed.

  • 24. Fr Bill  |  March 8, 2014 at 9:19 am

    What the Legislture giveth the Legislature can take th away. The RC, New Hope and other Evangelicals are still beating the war drums and will be very involved in the primaries and elections for the State House and Governor. Hawaii needs the 9th Circuit ruling on ME to finally kill this issue in HI

  • 25. Zack12  |  March 8, 2014 at 10:01 am

    Exactly, and it's not just the Republicans we have to worry about.
    From what I've heard, none of the bigoted Democrats who voted no(or the self-loather Jo Jordan) are facing any primary challenges or risks of losing their seats, only those that voted for us.
    And as you said, it is NOT a settled issue for the groups you mentioned. I have no doubt that if the anti-side gets control, they'll will get to work on passing things like the "religious freedom" bills and a ban to be put on the ballot for people to vote on.
    If nothing else, the New Hope Minister is running for LG, that alone should be enough to keep the lawsuit going.

  • 26. Pat  |  March 8, 2014 at 2:40 am

    Interesting. Still seems odd to a non-expert like me that a minor appeal that's very specific to Hawaii could hold back the whole circuit. Does anyone know what's his deadline for appealing?

  • 27. Dr. Z  |  March 8, 2014 at 5:18 am

    I thought the Ninth finally decoupled the Hawaii case from Sandoval.

  • 28. Ragavendran  |  March 8, 2014 at 8:59 pm

    That is correct. The order granting expedited calendaring of the case explicitly vacated the portion of the previous order that coupled the Hawaii case together with this one.

  • 29. Scottie Thomaston  |  March 8, 2014 at 11:44 am

    They had just said "as soon as possible". The Ninth Circuit is a huge circuit so there's no way to know, really. And I don't think it's related to the Hawaii case at all. They're just notoriously slow.

  • 30. Marriage Equality Round-U&hellip  |  March 8, 2014 at 8:04 am

    […] USA: The Ninth Circuit case involving LGBT juror discrimination that has changed the course of several unrelated marriage equality cases will not be challenged. full story […]

  • 31. Tim  |  March 8, 2014 at 8:08 am

    Helpful: site has been updated with key upcoming dates and what level of court cases are in.

  • 32. Straight Ally #3008  |  March 10, 2014 at 8:12 am

    That format is so much better!

  • 33. Sagesse  |  March 10, 2014 at 3:34 am

    On state DOMA amendments, the horse is already out of the barn. However, the Prop 8 ruling continues to make history…

    In Prop. 8 ruling's wake, initiative sponsors take protective steps [LA Times]

    Mindful of the Supreme Court ruling against Proposition 8, California initiative sponsors build in language so they can defend their measures if the state does not.

  • 34. davep  |  March 10, 2014 at 9:53 am

    That article fails to point out something pretty important. The defendant interveners were not ruled to have no standing simply because they were not 'agents of the state', they were also ruled to have no standing to appeal because they could show no harm from the lower court's ruling, and that is the whole point – allowing same sex couples to legally marry does not cause any harm and therefore the denial of equal protection serves no purpose and advances no states interest.

    The article says things like "The high court said sponsors may not appeal a federal judge's order against an initiative, even if state officials refuse to defend it." Which is simply not true. If they could have shown harm, they would have had standing to appeal.

    And good luck with that kind if wording passing any BS test in any court. You can't simply 'declare' that you have legal standing to appeal, and no matter what you say, you will NOT have standing to appeal when you do pass the established legal tests for having standing to appeal.

  • 35. Mike in Baltimore  |  March 10, 2014 at 3:30 pm

    That is why I don't trust a single report. A single report reflects the mindset (i.e., opinion) of the writer [whether intentionally or not], and does not necessarily include facts outside the mindset of the writer. The report could be accurate, but then again … .

    Those who do research rely on multiple reports, unless the single report transmits undeniable information (such as the finding of bones, finding a mummified body in a car, etc.). And even then, a single report might not be completely accurate. It could be off with regards to certain facts, or missing certain facts, such as the strength of an earthquake, etc.

  • 36. Schteve  |  March 11, 2014 at 9:02 pm

    Personal harm is a sufficient but not necessary condition to confer standing. For example, neither the governor nor attorney general suffer any personal harm when a state law is struck down, but they are authorized to represent the interests of the state itself. That is what the California Supreme Court held initiative sponsors were able to do (at least when state officials decline to defend the law).

  • 37. sfbob  |  March 10, 2014 at 9:55 am

    I know it can be dangerous to be so certain but it appears to me that such "steps" are kind of laughable. Article III standing is based on Federal law. I don't think any ballot measure, no matter how strongly worded to the contrary it might be, can grant its proponents Article III standing.

  • 38. Bruno71  |  March 10, 2014 at 4:17 pm

    Unless the ballot question amended the California Constitution to say that ballot proponents can act as proper representation for the state in court, I agree.

  • 39. sfbob  |  March 10, 2014 at 5:38 pm

    Ballot measures can include a provision providing that the proponents have standing at the state level to defend them if the state refuses to do so. However they can't tell the federal judiciary how to apply its own rules. The Calfornia Supreme Court, at the request of the Ninth Circuit Court of Appeals, issued a ruling opining that ballot measure proponents had standing to defend Prop 8 as far as the California Constitution is concerned but that did the proponents no good in front of the Supreme Court.

  • 40. Eric  |  March 10, 2014 at 6:14 pm

    A properly worded ballot measure can convey federal standing to the proponents. Prop 8 was just an example why a ballot measure needs more than fourteen words and why Pugno is a terrible attorney. Had the People of California wanted the proponents to have standing, they would have included that language in the ballot measure.

  • 41. MichGuy  |  March 10, 2014 at 6:27 pm

    I think you are wrong Eric. Listin to what sfbob said above. is statement looks to be correct. The CSC ruled that the proponents had standing so no matter if It was written into pro 8 or not it still didn't change the fact that the CSC said that the CALI constitution already grants them standing.

    Ballot measures can include a provision providing that the proponents have standing at the state level to defend them if the state refuses to do so. However they can't tell the federal judiciary how to apply its own rules.

  • 42. Schteve  |  March 11, 2014 at 9:10 pm

    A initiative can't just say "initiative proponents have standing to defend this in federal court". What these initiatives are trying instead is to say "initiative proponents are agents of the state". After all, the reason the Supreme Court found they lacked standing was that they were not agents of the state.

    Personally, I think this has the potential to work. I find it hard to argue that California law does not appoint the initiative sponsors to be agents of the state when the law itself spells that out clearly! Now, it's true that the Supreme Court could still argue the lack of fiduciary duty means they aren't truly an agent, or say being an agent is a necessary but not sufficient condition, but remember they only have to persuade a single justice from the Hollingsworth majority. The minority already believes initiative sponsors have standing without such a provision (at least in California and when state officials decline to defend the law).

  • 43. Chris M.  |  March 10, 2014 at 8:23 pm

    I don't see how any language in a state constitutional amendment could possibly confer Article III standing post Prop-8 to initiative proponents. The CA supreme court couldn't do it, and ballot language won't be any different. But I can very well imagine a work-around; that is a provision in the amendment that requires the state to defend it. Then the defense of this proposition will become a constitutional duty of the AG and governor, which they are sworn to carry out.

  • 44. sfbob  |  March 10, 2014 at 8:32 pm

    Actually I'm not sure that the work-around would actually work. State level officers take an oath of office to protect and defend both the state and the federal constitution. If there is a conflict, they are on very firm ground in refusing to defend a measure that violates the US constitution for the very simple reason that the US constitution trumps a state constitution. If there is a conflict, guess which one loses.
    Back in 1964, the state of California (wisely) refused to defend Prop 14, which claimed to abrogate any civil rights laws as they pertained to real estate transactions. The state (governed at that time by Jerry's dad Pat Brown) argued against it at every level and the Supreme Court ultimately tossed out Prop 14.
    I think what's important here is that even if a ballot measure included language purporting to grant Article III standing to its proponents, such a statement wouldn't have any validity at the federal level.

  • 45. bayareajohn  |  March 10, 2014 at 9:49 pm

    I suspect a way to do it (if it were really desired) would be to revise the public petition process to require the State to provide at a minimum clerical and Legal Appearance support to a public group who wish to defend such a duly enacted law in Federal Court. The State clearly has the right in Federal Court to appoint or hire whatever counsel they choose; the State however must remain a party. So if the public group, who alone would not have standing, were to be "sponsored" in form by the state as part of the public trust, it would not technically matter that the State didn't believe in the subject. Such a provision would essentially require that the State suspend their disbelief for the purpose of allowing a proposition proponent to defend. The State would not need to be required to enforce a law that it judges to violate their oath to follow the Federal Constitution, just to shepherd the defense of the petitioners who prevailed at the polls. It might be proposed that the State Supreme Court would need to be petitioned to decide if the circumstances merited the State sponsorship to the Federal Courts, if someone wanted to add more checks and balances.

    Of course, there's factors I'm not considering… this would not be a simple rule to get right, but it seems possible if Californians really care to keep teeth in the public proposition. The process was intended to be and should be more than a "suggestion" to the State.

  • 46. Schteve  |  March 11, 2014 at 9:12 pm

    If a provision of the initiative can appoint its sponsors as agents of the state, then that would likely suffice to confer standing. (Whether a provision can do that is another question for federal courts to resolve.)

  • 47. sfbob  |  March 10, 2014 at 8:26 pm

    A variation on this was part of the state of New Jersey's losing argument in that state's marriage equality case. To provide as brief a synopsis as I can: once DOMA was overturned, legally-married same-sex couples were entitled to the same federal benefits as opposite-sex couples. The state Supreme Court's prior ruling requiring that gay/lesbian couples receive the same benefits as heterosexual couples allowed the state to create civil unions because, at the time, DOMA was still in effect so the only rights the couples could receive would be state-level rights. Once DOMA was overturned that was no longer the case and therefore the issue was re-litigated. The state opined that the federal government SHOULD recognize domestic partnerships and civil unions on the same basis as it recognized marriage. However the court noted that the state could not compel the federal government to do such a thing. Likewise a state law can grant people leave to bring a suit at the state level in circumstances which would not obtain at the federal level but no state law can compel a federal court to change its application of federal law.
    Per the state Supreme Court's ruling, the state constitution conferred on ballot measure proponents the right to defend a measure in court if the state's executive branch refused to do so and the 9th Circuit took that under advisement when considering the appeal of the Prop 8 verdict. The Supreme Court's attitude was that the state could say whatever it wished but that that didn't change the meaning of Article III standing, which (it concluded) the ballot measure's proponents did not have no matter what the state constitution said.

  • 48. Policy and Legal Update &&hellip  |  March 10, 2014 at 7:47 am

    […] CALIFORNIA • On 7 March 2014, in SmithKline Beecham v. Abbot Laboratories, Abbott decided not to seek a rehearing at the 9th Circuit U.S. Court of Appeals, and not to seek an appeal at the U.S. Supreme Court.  Abbott’s decision left intact throughout the 11 states in the 9th Circuit (AK, AZ, CA, Guam, HI, ID, Northern Mariana Islands, MT, NV, OR, WA) the precedent that sexual orientation discrimination cases are decided under the principles of heightened scrutiny, which:  (1) require the government to prove that laws do not discriminate on the basis of sexual orientation, (2) require the government to prove that laws are necessary, and (3) shift the burden of proof from the plaintiff (victim) to the defendant (government).  • MEUSA Summary  •  News Source […]

  • 49. bayareajohn  |  March 10, 2014 at 11:30 am

    Constructing proposition language that concludes with "I win, you lose, infinity, no backsies" does not change anything. If they want to change issues of standing and how to resolve it when a stat elects not to defend a proposition, it's the system itself than needs a revision. A proposition specifically about solving these issues and establishing policy, conferring agency standing as a state function is what, if anything, is required… not just a tack-on "I am a Princess" self delusions.

  • 50. davep  |  March 10, 2014 at 1:34 pm

    Haw! That's exactly how I was picturing it – little kids making up their own rules to a game as they went along. "no backsies!". Priceless : )

  • 51. Mike in Baltimore  |  March 10, 2014 at 3:44 pm

    The California Supreme Court has already ruled that proposition backers, in California state courts, have standing. SCOTUS ruled that the proposition backers had NOT proven that they have Article III standing in Federal courts, thus the case was effectively dismissed.

    Article III standing in Federal courts does not result from saying you have Article III standing, but proving it. So far, no Article III standing in Federal courts for the 'coalition' has been proven.

  • 52. How One Gay Juror May Hav&hellip  |  March 17, 2014 at 4:01 am

    […] every state in this country and greater constitutional protections for all LGBT Americans,” HRC President Chad Griffin is quoted as saying. “We thank the company for standing on the right side of […]

  • 53. Equality On TrialOregon o&hellip  |  March 18, 2014 at 8:35 pm

    […] its discrimination against people based on those grounds. Recently, the losing party in that case announced that they won’t seek Supreme Court review, and the time has expired for a request for a rehearing with a larger panel of Ninth Circuit […]

  • 54. Equality On TrialNinth Ci&hellip  |  March 27, 2014 at 12:30 pm

    […] 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 […]

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