In early March, the 9th Circuit Court of Appeals scheduled oral arguments in Nevada’s same-sex marriage case, Sevcik v. Sandoval, for April 9 in San Francisco. It would have been the first same-sex marriage case argued at the Court of Appeals level.
Shortly after, however, the Court of Appeals cancelled the April 9 date for argument without explanation. A new hearing date has not been rescheduled. Now I know why.
A judge of the 9th Circuit Court of Appeals has sua sponte requested an en banc hearing in SmithKline Beecham v. Abbott Laboratories, a case that involved whether gay people could be kept off a jury in a trial. On Jan. 21, a three-judge panel of the 9th Circuit stated, “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.”
Abbott Laboratories did not seek further review from the 9th Circuit, and the company said it would not seek Supreme Court review of the 9th Circuit Court decision.
The SmithKline Beecham heightened scrutiny standard of review caused the state of Nevada to drop its defense of the state’s same-sex marriage ban in Sevcik v. Sadoval. The state of Oregon also dropped its defense of the state’s same-sex marriage ban in a cases pending in the U.S. District Court for Oregon.
Now a judge of the 9th Circuit Court of Appeals has sua sponte (an act of authority taken without formal prompting from another party) requested an en banc hearing in SmithKline Beecham. This is unheard of, especially in a case where the parties have already exhausted any further appeals.
Federal Rules of Appellate Procedure, Rule 35 (b) provides that “A party may petition for a hearing or rehearing en banc.” No party requested this en banc hearing. further, Fed. R. App. P. 35(a) provides “An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.”
Lyle Denniston at SCOTUSblog attempts to explain what is going on. Defining a legal test for sexual orientation discrimination :
A federal appeals court ruling that had appeared to make it harder for states to justify a ban on same-sex marriage, by raising the constitutional barrier to laws based on sexual orientation, may now be given a new look. The U.S. Court of Appeals for the Ninth Circuit disclosed Thursday that one or more of its judges have sought to review the issue further, so the court called for new legal briefs.
This development in the Ninth Circuit case of SmithKline Beecham Corp. v. Abbott Laboratories (Circuit docket 11-17357) could be significant as federal appeals courts soon move into into several hearings on same-sex marriage. [The Tenth Circuit has scheduled oral arguments in Kitchen v. Herbert, the Utah case, to be heard on April 10, 2014. Bishop v. Smith, the Oklahoma case, will be heard on April 17. The Fourth Circuit has scheduled oral arguments in Bostik v. Rainey on May 13.] A common issue in those cases will be how tough a constitutional test a ban on such marriages must satisfy.
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Abbott Laboratories . . . chose last month not to pursue a rehearing. It thus appeared that the “heightened scrutiny” standard would now be binding law in the Ninth Circuit, and thus would be used next when that court reviews a Nevada ban on same-sex marriage.
In fact, the SmithKline decision convinced state officials in Nevada that they could no longer defend the state ban. That case, though, is moving forward with other defenders of the ban.
Although Abbott Laboratories passed up its chance to seek further review, that did not end that possibility. Now, at least one judge of the full Ninth Circuit has called for a vote on en banc review. That will be taken after the two sides in the case file the new briefs, which are due [in] three weeks.
If en banc review is set, that could mean that the hearing in the Nevada same-sex marriage case — on a date not yet set — would go forward with the state able to argue for the continued application of a lesser legal standard (“rational basis”), since that was the test established in the Ninth Circuit prior to the SmithKline ruling. The lawyers for the same-sex couples’ case could, of course, make the argument that the “heightened scrutiny” standard should be applied in their case anyway, relying — as the panel did — on the Supreme Court’s Windsor opinion.
Perhaps, though, the Nevada case could be put on hold until after the standard-of-review issue is settled either by an en banc decision in SmithKline, or by a denial of en banc review. Presumably, the Ninth Circuit will vote on the en banc question soon after the two sides’ further briefing. Those briefs are due simultaneously by April 17. [The week that the 1oth Circuit is hearing the Utah and Oklahoma appeals.]
It takes “A majority of the circuit judges who are in regular active service and who are not disqualified [to] order that an appeal or other proceeding be heard or reheard by the court of appeals en banc.” Fed. R. App. P. 35(a).
Whatever the motives of this unidentified Judge of the Ninth Circuit, the consequences will be delaying a decision in Sevcik v. Sandoval, which had been on the fast-track to becoming the first Court of Appeals decision striking down state same-sex marriage bans.
That honor will now fall to the 1oth Circuit or the 4th Circuit, whichever Court is first to issue its opinion and order.