Judge Diarmuid O'Scannlain, U.S. Court of Appeals for the Ninth Circuit
Judge Diarmuid O’Scannlain, U.S. Court of Appeals for the Ninth Circuit ()

SAN FRANCISCO — Over protests from conservative judges, the U.S. Court of Appeals for the Ninth Circuit on Tuesday left intact its landmark gay rights ruling prohibiting jury strikes based on sexual orientation.

Judges on the appeals court voted against reconsidering a unanimous panel decision that classifications targeting gays and lesbians must be subjected to heightened scrutiny, similar to the protections afforded women and minorities.

But three judges clamored that the holding, which is expected to shape gay marriage litigation unfolding in Western states, demanded more thorough consideration. In an impassioned dissent from the denial of en banc review, Judges Diarmuid O’Scannlain, Jay Bybee and Carlos Bea called the court’s ruling in SmithKline Beecham v. Abbott Laboratories an “unprecedented application of heightened scrutiny” to sexual orientation that should not have been decided as a collateral issue in an antitrust suit.

“Without even acknowledging the consequences of its decision, the panel has produced an opinion with far-reaching—and mischievous—consequences, for the same-sex marriage debate and for the many other laws that may give rise to distinctions based on sexual orientation, without waiting for the appropriate guidance from the Supreme Court,” O’Scannlain wrote in a 10-page dissent.

O’Scannlain noted that the Ninth Circuit is the first appeals court to apply heightened scrutiny to equal protection claims based on sexual orientation since United States v. Windsor, the U.S. Supreme Court’s 2013 decision striking down part of the Defense of Marriage Act. He lamented that officials in several Western states have already cited the Ninth Circuit’s January decision as they give up their defenses of legislation defining marriage as a union between a man and a woman. He urged judges not to take their cues from the Ninth Circuit.

“We have misled district courts within our circuit by forcing them to join us out on this limb and have offered those around the country an invitation … to do the same,” he wrote. “Reliance on the panel’s analysis as an example of anything more than an exercise of raw judicial will would be most unwise.”

Tuesday’s order followed a sua sponte call for en banc review from an active judge on the Ninth Circuit. Many sat on the sidelines for the vote: Judges Susan Graber, M. Margaret McKeown, Kim Wardlaw, Milan Smith, Paul Watford, Michelle Friedland and John Owens recused. A spokesman for the circuit said the judges declined to explain their recusals. According to their 2012 financial disclosure reports, McKeown and Wardlaw owned stock in Abbott Laboratories.

The original three-judge panel waded into a fiercely litigated antitrust case in which GlaxoSmithKline accused Abbott of hiking up the prices of one of its HIV medications.

Ahead of a 2011 trial before U.S. District Judge Claudia Wilken in Oakland, Abbott lawyer Jeffrey Weinberger of Munger, Tolles & Olson used his first peremptory challenge to exclude a juror after he alluded to “his partner” with a male pronoun. SmithKline lawyer Joseph Saveri complained that his adversary sought to exclude jurors who appeared to be gay. Wilken let the challenge stand, saying she wasn’t sure protections under Batson v. Kentucky, a U.S. Supreme Court case forbidding race-based jury strikes, extended to gay jurors.

After SmithKline appealed the decision to exclude the juror, Circuit Judges Mary Schroeder, Stephen Reinhardt and Marsha Berzon reversed Wilken.

Writing for the panel, Reinhardt concluded the Supreme Court’s holding in Windsor demanded heightened scrutiny for laws denying equal protection to gays and lesbians. “Windsor review is not rational basis review,” he wrote. “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.”

Arnold & Porter partner Lisa Blatt argued for SmithKline, and Munger Tolles partner Daniel Levin argued for Abbott. Neither lawyer responded immediately to a request for comment.

In light of the important social issues at stake, the Ninth Circuit might have elected to review the case en banc in years past, said Ben Feuer, a counsel at the California Appellate Law Group. “I think this shows where the Ninth Circuit is and perhaps that the general consensus of opinion that’s really taken hold is one of tolerance and respect for people’s sexual orientations.”

O’Scannlain noted that the order conflicted with other opinions from three-judge panels in the Ninth Circuit, which he said strengthened the case for en banc review.

O’Scannlain’s opinion conforms with the Ninth Circuit’s well-worn practice of issuing what Chief Judge Alex Kozinski has coined “dissentals,” or elaborate dissents on decisions to deny en banc review. Judges often send them as a flare for Supreme Court review, said Rory Little, a law professor at UC-Hastings.

“When O’Scannlain writes a dissent from the denial of en banc, that’s often a draft cert petition,” Little said.

But the call for Supreme Court review may go unanswered by the companies, said Little, noting that Abbott did not request en banc review of the Ninth Circuit’s decision against it.

“The drug company at issue may not want to become the poster child for bias against gays,” Little said.

Contact the reporter at jlove@alm.com.