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Ninth Circuit won’t rehear gay juror discrimination case

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Ninth Circuit Court of Appeals
Ninth Circuit Court of Appeals

The Ninth Circuit Court of Appeals has denied rehearing en banc in SmithKline Beecham v. Abbott Laboratories, a case involving a gay man who faced discrimination in jury selection.

None of the parties had asked the appeals court to rehear the case, but at least one Ninth Circuit judge called for a vote on the question. The court asked the parties to file briefs, and while one party, AbbVie, a spin-off of Abbott Laboratories, noted that they support rehearing, their support was limited to how to implement the ruling that people can’t be kicked off a jury solely on the basis of their sexual orientation.

Neither party asked the Ninth Circuit to overturn its ruling that discrimination on the basis of sexual orientation generally warrants more stringent judicial scrutiny. The new ruling means that the appeals court will join the Second Circuit in reviewing those claims more closely.

Rehearing en banc generally means that a case will be heard by all active judges on an appeals court, but the Ninth Circuit has so many judges that their en banc panel consists of eleven judges.

Judge O’Scannlain, a conservative judge on the court, wrote a dissent joined by two other judges. His dissent noted that the ruling has implications for several same-sex marriage cases in the Ninth Circuit.

Thanks to Kathleen Perrin for these filings


  • 1. Jen_in_MI  |  June 25, 2014 at 8:16 am

    Doing the happy dance! FINALLY. And who is surprised by O'Scannlain? NO ONE.

  • 2. debater7474  |  June 25, 2014 at 8:31 am

    I don't understand the argument against more rigorous scrutiny. Would their position be that gays as a class HAVEN'T been subject to a history of discrimination in this country? Such an argument is so laughable and demonstratively false that it's hard to imagine taking it seriously in any way.

  • 3. RnL2008  |  June 25, 2014 at 8:55 am

    The reality is that there will always be people in this world like these 3 Judges who will use their animus and dislike as reasons to justify discriminating against a multiple of individuals, NOT just Gays and Lesbians.

    These Judges probably would have had issues with interracial marriages and other forms of discrimination being used…..but we must overcome these types of individuals and continue to educate others that who one loves and is is NOT something to fear.

    I believe that if one's religious freedom is subject to a heighten scrutiny, then so should one's sexual orientation…….I mean one is ABSOLUTELY a choice and the other some consider a choice!


  • 4. brandall  |  June 25, 2014 at 8:56 am


    Judge Young writes: “The court has never witnessed a phenomenon throughout the federal court system as is presented with this issue. In less than a year, every federal district court to consider the issue has reached the same conclusion in thoughtful and thorough opinions – laws prohibiting the celebration and recognition of same-sex marriages are unconstitutional. It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love. In time, Americans will look at the marriage of couples such as Plaintiffs, and refer to it simply as a marriage – not a same-sex marriage. These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such.”

    Brief is here:

  • 5. RnL2008  |  June 25, 2014 at 9:03 am

    Great news….thanks for posting this:-)

  • 6. Roulette00  |  June 25, 2014 at 9:07 am

    Nelson Muntz. Paging Nelson Muntz.

  • 7. brandall  |  June 25, 2014 at 10:23 am

    Here we go again. I did not have time to read the ruling, but I assume it did not have a stay? Can't these courts stagger issuing their rulings by a few hours so we have a chance to read them before the next one hits? It's only 10:30am PDT, it would be amazing if another rule popped out somewhere!

    1st gay couple marries legally in Indianapolis, AG says he will appeal the ruling

  • 8. davepCA  |  June 25, 2014 at 10:40 am

    "Can't these courts stagger issuing their rulings by a few hours so we have a chance to read them before the next one hits? "

    …. the quality of our problems is definitely improving : )

    See you guys in SF tonight!

  • 9. jpmassar  |  June 25, 2014 at 8:59 am

    The Associated Press ‏@AP 7m
    BREAKING: Judge strikes down Indiana's ban on same-sex marriage, says it violates equal protection.

  • 10. Terence  |  June 25, 2014 at 9:37 am

    And now – UTAH!

    Press release from NCLR

    n a landmark decision today, the United States Court of Appeals for the Tenth Circuit ruled that Utah’s ban on the freedom to marry for same-sex couples violates the U.S. Constitution’s guarantees of equal protection and due process.

    Today’s decision in Kitchen v. Herbert is the first federal appellate court ruling in a freedom to marry case since the United States Supreme Court ruled in June 2013 that the federal government must recognize the marriages of same-sex couples.

    The case was brought by Utah couples Derek Kitchen and Moudi Sbeity, Laurie Wood and Kody Partridge, and Karen Archer and Kate Call. On December 20, 2013, U.S. District Court Judge Robert J. Shelby ruled that Utah’s laws denying same-sex couples the freedom to marry violate the U.S. Constitution’s guarantees of equal protection and due process. More than 1,000 same-sex couples married in Utah in the days following the ruling. Utah appealed the ruling to the Tenth Circuit, which heard oral argument in the case on April 10, 2014.
    The couples are represented by the Salt Lake City law firm of Magleby & Greenwood, P.C. and by the National Center for Lesbian Rights (NCLR). Peggy Tomsic of Magleby & Greenwood presented oral argument on behalf of the plaintiff couples.

    Said Tomsic: “Today’s decision by the Tenth Circuit affirms the fundamental principles of equality and fairness and the common humanity of gay and lesbian people. As the Court recognized, these families are part of Utah’s community, and equal protection requires that they be given the same legal protections and respect as other families in this state. The Court’s ruling is a victory not only for the courageous couples who brought this case, but for our entire state and every state within the Tenth Circuit.”

    Added Kitchen: “We are overjoyed by the court’s decision, which means so much to us, our family, and everyone who believes in justice and fairness. Since the lawsuit was filed last year, we have received so much support from so many people in our state, and we are now looking forward to the day when we will finally be married.”

    NCLR Executive Director Kate Kendell stated: “Today’s ruling marks the first time a federal court of appeals has ruled that excluding same-sex couples from the freedom to marry is unconstitutional. The Court makes clear that the promise of equality embedded in our revered U.S. Constitution includes the lives and loves of lesbian, gay, bisexual, and transgender Americans. That recognition marks an indelible milestone in our nation’s journey to full inclusion—and one that will undoubtedly influence other courts in the months to come.”

  • 11. disorder panic attacks&hellip  |  June 29, 2014 at 2:46 pm

    disorder panic attacks

    Equality On TrialEquality On Trial ยป

  • 12. Equality On TrialEquality&hellip  |  July 10, 2014 at 11:25 am

    […] using a more rigorous form of judicial scrutiny under the Equal Protection Clause. The court had declined to rehear the decision with an 11-judge panel, and now that the mandate has been issued, the case is final. […]

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