Opinion

Alison Frankel

On one-year Windsor anniversary, 9th Circuit delivers best gay rights gift

By Alison Frankel
June 25, 2014

Sometimes, the best way to understand the broad implications of a court’s decision isn’t to read the ruling itself but rather the dissent. That was certainly true a year ago, when Justice Antonin Scalia attacked the U.S. Supreme Court’s decision in Windsor v. U.S., which struck down federal prohibitions on same-sex marriage as an unconstitutional intrusion on the equal rights of gays and lesbians. The majority’s ruling was carefully constrained, but a furious Scalia predicted that the stirring language of Justice Anthony Kennedy’s opinion would reverberate more loudly in the lower courts than the actual holding. As we now know from decisions all over the country striking down restrictions on same-sex marriage, Scalia was right.

So if you want to know just how monumental a gay-rights ruling the 9th U.S. Circuit Court of Appeals issued Tuesday, just two days short of Windsor’s one-year anniversary, take a look at the dissent written by Judge Diarmuid O’Scannlain and joined by Judges Jay Bybee and Carlos Bea. O’Scannlain posits that his colleagues’ decision in the case, GlaxoSmithKline v. Abbott Laboratories, “precludes the survival under the federal Constitution of long-standing laws treating marriage as the conjugal union between a man and a woman.” But it’s even more drastic than that, according to the dissent: The appellate decision has changed the standard for evaluating all laws targeting gays and lesbians, the dissent said, “with far-reaching — and mischievous — consequences.”

If the 9th Circuit dissenters turn out to be as good at fortune-telling as Scalia, states in the Western swath of this country — California, Oregon, Washington, Montana, Idaho, Nevada, Arizona, Hawaii and Alaska — won’t be able to curtail equal rights based on sexual orientation, even if the states think they have a rational basis for doing so. That’s a much farther-reaching holding even than the 10th Circuit’s decision Wednesday that Utah’s ban on same-sex marriage is unconstitutional — and for gay rights proponents, it’s quite an anniversary present.

It’s true, as the 9th Circuit dissenters pointed out, that the 9th Circuit used an unusual vehicle to deliver it. The underlying case, as I’ve explained in a previous column, involved a pharmaceutical antitrust dispute in which GlaxoSmithKline accused Abbott Laboratories of illegally jacking up the price of some HIV medications. When the case went to trial, Abbott’s lawyers struck a prospective juror whose responses to questions suggested that he might be gay. GSK appealed the jury verdict because it said (among other things) that Abbott violated Supreme Court precedent on improper discrimination in jury selection.

Last January, a three-judge panel of the 9th Circuit sided with Glaxo, but didn’t stop there. The opinion, by Judge Stephen Reinhardt, said that after the Supreme Court’s Windsor decision, lower courts must evaluate laws targeting gays and lesbians with “heightened scrutiny,” applying the strict test that protects the equal rights of groups such as women and racial minorities — and not the less stringent “rational basis” review that the 9th Circuit previously used in considering laws based on sexual orientation. Reinhardt acknowledged that the Supreme Court didn’t quite spell out in Windsor that it was using heightened scrutiny to strike down the federal Defense of Marriage Act. But, he said, “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.”

Abbott spinoff AbbVie announced in March that it would not ask for any further review of the panel’s decision, which would have left Reinhardt’s opinion intact as the law of the 9th Circuit. Then, however, something unusual happened. An unidentified judge or judges on the 9th Circuit called for all of the active judges of the court to vote on whether to rehear the case en banc. The court ordered AbbVie to submit a brief, even though the company had said it did not want the appeal to proceed.

AbbVie’s brief argued that the 9th Circuit should leave in place the panel’s determination that laws based on sexual orientation should be subject to heightened scrutiny, but that the court should review Reinhardt’s decision because the appellate panel erroneously found that Abbott discriminated against a juror on the basis of his sexual orientation. (Glaxo, of course, argued against additional review.)

Tuesday’s decision by the 9th Circuit rejects the en banc rehearing, without any additional explanation from the judges who decided not to take the case. The only commentary came from O’Scannlain and his two fellow dissenters, who lamented that an antitrust dispute had somehow “morphed into a constitutional essay about equal protection and sexual orientation.”

The decision leaves heightened scrutiny as the rule of the land in the 9th Circuit, unless AbbVie decides to ask the Supreme Court to review the case. Only AbbVie has constitutional standing to appeal the 9th Circuit holding. I contacted a corporate representative to ask about the company’s plans; in an email, he declined to comment. Even O’Scannlain, though, predicted that AbbVie probably won’t take the case any farther, considering that it wanted to drop the appeal before it reached the entire 9th Circuit.

Gay right proponents — me included — should hope this isn’t the only prediction O’Scannlain gets right.

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