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Ninth Circuit confirms heightened scrutiny

Timothy Kincaid

June 24th, 2014

In January, a drug pricing dispute between GlaxoSmithKline and Abbott Laboratories had an unexpected consequence; as part of its ruling, the Ninth Circuit Court of Appeals determined that laws which discriminate on the basis of sexual orientation are to be held to heightened scrutiny. This was based on principles implied – though not directly stated – in the Windsor ruling.

What this means in layman’s terms is that any law which discriminates against gay people is viewed askance, and the lawmakers need to bring a damned good reason as to why it doesn’t violate the US Constitution’s promise of fairness and equal treatment. Something tangible and provable and measurable. Things like “promoting the family” or “tradition” or fears about what might possibly happen are simply not going to fly anymore.

And there are few laws which can stand up to such scrutiny, certainly not the vague and ambiguous assertions presented in opposition to marriage equality. In fact, based on the decision, the Republican Governor of Nevada ceased defending that state’s anti-gay marriage ban, finding the conclusion to be pre-determined and any further defense to be a waste of public resources.

Noting the importance of this ruling, Abbott Laboratories, the losing party in the lawsuit, announced that they would not appeal, fearing that the Supreme Court might reverse this decision. They preferred a multi-million dollar loss rather than risk a hasty overruling.

This seemed to have sealed the decision for all western states, those in the Ninth Circuit.

However, in a rare move, one of the justices on the Ninth Circuit challenged the Court’s ruling. Justice Diarmuid O’Scannlain called for an en banc ruling, a hearing by eleven of the circuit’s 45 judges, to determine whether indeed the idea that anti-gay discrimination merits heightened scrutiny could be found in the Windsor ruling.

And now the results are in. The majority of the justices on the Ninth Circuit upheld the court’s ruling. In fact, only two went on record as agreeing with Justice O’Scannlain.

This appears to mean that the issue is – for the time being – determined. Within the Ninth Circuit, anti-gay laws must meet a higher level than most laws. And, in practical terms, this pre-determines the Ninth’s response to appeals to rulings overturning anti-gay marriage bans.

It may be a matter of hearing, but based on heightened scrutiny, it is nearly impossible for anti-gay legislators, lawyers, or activists do defend such bans.

Comments

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Spunky
June 25th, 2014 | LINK

Things like “promoting the family” or “tradition” or fears about what might possibly happen are simply not going to fly anymore.

Yeah, because they’ve worked so well in the past. :-)

No, in all seriousness, I see what’s you’re saying: there’s even less incentive for public officials to even bother defending marriage bans, even in a state like Nevada, where a judge already ruled a gay marriage ban DOES meet rational basis.

I’ll take it.

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