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Plaintiffs Request Initial En Banc Hearing in Gill and Massachusetts

The plaintiffs in the companion cases of Gill and Massachusetts file a request with the First Circuit asking for an initial hearing of the case en banc.  Appeals to the U.S. circuit courts are generally heard by 3-judge panels, whose decisions can then be referred to an en banc panel of the full circuit court before going to the Supreme Court.  In exceptional cases, parties can request that the circuit court skip the 3-judge stage and move directly to the en banc step.

In their briefing, the plaintiffs argue that an initial en banc hearing is merited because of a previous precedent in the First Circuit concerning the appropriate level of constitutional scrutiny which should be applied to gays and lesbians.  In the 2008 case Cook v. Gates, the First Circuit ruled that “classifications of sexual orientation do not target a suspect class” and used rational basis scrutiny in reviewing the military’s Don’t Ask Don’t Tell policy.  That case took place within a military context, in which the courts usually give laws increased deference .

Because the full First Circuit could clarify the precedence of Cook, but a 3-judge panel would be bound by it, the plaintiffs argue that initial en banc is necessary to foreclose any confusion regarding the scrutiny question.

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