The Ninth Circuit Court of Appeals has decided it will not review an earlier decision which stated claims of discrimination based on sexual orientation required “heightened scrutiny.”
The case, SmithKline Beecham v. Abbott Laboratories, centered around a dispute over HIV drugs, but the sexual orientation question came in to play when lawyers for Abbott removed a person from the jury because he is gay. The 9th Circuit had ruled that a lawyer could not do so; in reaching that ruling, though, the court first decided that sexual orientation claims should be subjected to heightened scrutiny.
While most laws that create groups or classifications must merely show there is a rational basis, or a legitimate reason, for the law, laws subjected to heightened scrutiny must show more. Some, like those that classify based on race, must show a compelling state interest for the classification, while others, like those based on sex, must show a lesser but still important state interest in doing so.
Abbott has stated it will not seek appeal.
While SCOTUS has not ruled specifically on the question of what level of scrutiny sexual orientation claims should receive, the 9th Circuit ruling referenced SCOTUS’s decision in United States v. Windsor, which struck down part of the Defense of Marriage Act saying “established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review.”
The decision could affect challenges to same-sex marriage bans for those states within the Ninth Circuit’s jurisdiction.
The states in the 9th Circuit are Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
Read the entire decision here.