Box Turtle Bulletin

Ninth Circuit confirms heightened scrutiny

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.

Marriage in the Western states, brought to you by Abbott Labs

In January, the Ninth Circuit Court of Appeals ruled on a HIV drug pricing dispute between GlaxoSmithKline and Abbott Laboratories. Part of the dispute was over whether a potential juror could be excused because he was gay. Although Abbott insists that they excused him for other reasons, the Ninth Circuit found otherwise and ruled that just as one cannot exclude racial minorities or women from the jury pool, gay people also could not be excluded.

But the more important portion of their ruling had to do with why a gay man could not be excluded. For the first time at the Appeals Court level, it was determined that discrimination based on sexual orientation is subject to heightened scrutiny. This was a game changer.

Although courts have increasing held that gay people are entitled to equality in marriage and other matters, they’ve done so on ‘reasonable basis’ determinations, the lowest level of consideration. It is generally agreed that if laws that segregate by orientation are held to heightened scrutiny, few if any can survive.

In fact, so certain is this conclusion that the Democratic Attorney General and Republican Governor of Nevada decided that they would not even defend their state’s anti-gay marriage ban, citing the Ninth Circuit’s ruling.

However, all of this is subject to the US Supreme Court upholding or striking down the Ninth Circuit’s standard of scrutiny. If they were to hear Abbott Lab’s appeal (or that of AbbVie, the spin-off that is now the legal party in the dispute), they could strike down this decision and deal a rather heavy blow to the community.

But they won’t.

Because they are not going to hear the appeal.

Because Abbott Labs has decided that some things are more important than winning in court. (BuzzFeed)

An AbbVie spokesman, Dirk van Eeden confirmed that the company would not be pursuing further appeals in the case.

“AbbVie recognizes that the implications of the Court’s findings extend far beyond the underlying case. For that reason, we chose not to appeal,” van Eeden told BuzzFeed.

This is a potentially multi-million dollar decision. Frankly, I’m a bit stunned.

They may still appeal another section of the ruling. And perhaps they figured they’d lose anyway so why put out the cost of appeal. Or maybe they didn’t want to alienate customers.

But on the face of it, AbbVie chose to behave like a good citizen and neighbor. And because of that decision, I believe that probably before the end of the summer all area covered by the Ninth Circuit – Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, and possible Guam and the Mariana Islands – will have marriage equality.

Ninth Circuit: gays deserve heightened scrutiny

In 2011, GlaxoSmithKline sued Abbott Laboratories over the pricing of an HIV drug. Glaxo received a mixed win, but was not awarded the funds they felt they deserved and argued that the process was unfair, specifically the way in which the jury was selected.

Abbott’s attorneys had excluded a potential juror because he was gay and they believed that he would be biased against their drug pricing practices.

It has long been impermissible to exclude juror based on race or on sex. But the question had not been answered as to whether a person’s sexual orientation could be a reason for exclusion.

Now the Ninth Circuit has weighed in and, not surprisingly, the answer is no. You cannot purposefully select an all-straight jury (or, for that matter an all gay one).

But while it’s nice to find that I can’t be discriminated against in jury selection (though I’m tempted to wish otherwise) the reason for the ruling is the big story here. (Buzzfeed)

The 9th Circuit Court of Appeals, in a unanimous decision, held that discrimination based on sexual orientation is subject to heightened scrutiny — a decision the court concluded has been made in action, though not in word, by the Supreme Court itself.

In describing the reason for applying the new standard, Judge Stephen Reinhardt examined the Supreme Court’s June decision in Edith Windsor’s case challenging the Defense of Marriage Act. Although equal protection claims brought based on sexual orientation have previously been judged under the lowest level of review, called rational basis, the 9th Circuit held that a higher standard now applies.

Writing for the three-judge panel, Reinhardt wrote:

Windsor review is not rational basis review. In its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review. In other words, Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.

When a court reviews a discrimination case, it has different levels of “scrutiny” with which it examines a potentially discriminatory situation.

The weakest, “rational basis”, requires that the state be attempting to bring about a legitimate governmental purpose and that the law be rationally related to that goal. For example, a state might restrict driving in a carpool lane to vehicles with a minimum number of passengers. And while single people might feel this disadvantages them, because the state seeks to reduce vehicle emissions (a legitimate purpose) and because encouraging carpooling is rationally related to that goal, there is no civil rights issue. Under this basis the state generally has the presumption of legitimacy.

The strongest, “strict scrutiny”, requires a compelling governmental interest to which the policy is narrowly tailored and is the least restrictive way to achieve that goal. This category comes into play when a targeted group has a history of discrimination, an immutable characteristic, and is politically powerless to bring about change on its own, such as a group defined by race.

Strict scrutiny is a much higher standard and much more difficult to pass. Under this basis, the presumption is on the side of the group subjected to discrimination. For example, if a state were to pass a law restricting a carpool lane on the basis of race, it would be assumed to be unconstitutional out of the gate.

In between is “intermediate scrutiny”, in which a law must be for an important governmental interest and substantially related to that interest. Sex and illegitimacy issues fall into this category.

Another possible category appears to be “heightened scrutiny”, which is not yet well defined. It may be the same as intermediate scrutiny, and has been used in legal circles interchangeably, but that is not yet clearly established. But if it is not the same, it’s quite similar. It is in this category that the Ninth Circuit has found sexual orientation.

What all this means in practical terms is that – unless the Supreme Court reverses this decision – at least in the Ninth Circuit, laws that distinguish on the basis of sexual orientation will likely be overturned.

We have won a number of issues on the lowest, rational basis scrutiny, and if a state must now prove that their anti-gay discrimination is substantially related to an important governmental interest, then we have an even better chance of winning.