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DOJ Asks Ninth Circuit for an Initial En Banc Hearing in Golinski

The Justice Department files a brief with the Ninth Circuit asking for an initial en banc hearing of the Golinski case rather than a hearing by a 3-judge panel.  An en banc hearing is usually requested after an appellate court has ruled, although this intermediate step between the appellate court’s customary 3-judge panel and the Supreme Court is rarely granted.  Parties can, however, ask circuit courts to skip the 3-judge step and proceed straight to the en banc level.

In its request, the DOJ specifically addresses the issue of scrutiny and the precedent of the High Tech Gays case, writing, “a panel of this Court could not consider that question directly, but would need to undertake an initial examination of whether, as the district court found, subsequent decisions have sufficiently cast doubt on the continuing force of High Tech Gays such that it is no longer binding on a panel of this Court.  The en banc Court, by contrast, would not need to undertake that inquiry and could proceed to consider on a clean slate whether heightened scrutiny or rational basis review governs classifications based on sexual orientation.”

The Justice Department also argues that an initial en banc hearing is merited to advance the important goal of providing a swift and definitive resolution by this Court to the exceptionally important constitutional questions raised by plaintiff’s challenge.”

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