Appeals Court Could Reconsider Whether Anti-Gay Laws Get More Closely Scrutinized By Courts

A case that advocates thought was done could see another day in court.

The 43rd annual San Francisco Lesbian, Gay, Bisexual, Transgender Pride Celebration & Parade makes its way down Market Street on June 30, 2013. Sarah Rice / Getty Images

WASHINGTON — A federal appeals court could reconsider a decision from early this year that provides significant protections for people claiming governmental discrimination based on sexual orientation.

A judge of the 9th Circuit Court of Appeals has asked for the court to vote on whether to reconsider a case in which a three-judge panel of the court held in January that people couldn’t be excluded from juries simply because they are gay. In order to reach that decision, though, the panel decided that laws or government practices that treat gay, lesbian, or bisexual people differently should be examined more closely, called heightened scrutiny — a decision that would be applied to all challenges in the circuit that claim governmental sexual orientation discrimination.

The circuit hears appeals from much of the Western United States: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

One of the primary immediate effects of the application of heightened scrutiny to sexual orientation-based claims in the 9th Circuit was to the challenge to Nevada’s ban on same-sex couples’ marriages that is pending before the appeals court. Shortly after the January ruling, Nevada Attorney General Catherine Cortez Masto announced that she and Gov. Brian Sandoval would no longer be defending Nevada’s amendment on appeal in large part based on the fact that they did not believe their appeal would succeed if the amendment had to withstand heightened scrutiny.

Abbott Laboratories’ AbbVie — the company that lost in the 9th Circuit — decided not to ask for a larger panel of the 9th Circuit to reconsider the case in a process called en banc reconsideration, and the company also announced it would not be asking the Supreme Court to review the case.

Although advocates took that news as meaning the case was over, the 9th Circuit itself announced Thursday in an order from the three-judge panel that heard the appeal that a judge had called for a vote of the full court on whether the case should be given en banc reconsideration.

The brief order stated: “A sua sponte en banc call having been made, the parties are instructed to file within 21 days of the filing date of this order simultaneous briefs setting forth their respective positions on whether the case should be reheard en banc.”

The order means filings are due from the parties by April 17. If a majority of the 9th Circuit judges vote for reconsideration, under the court’s rules, the chief judge — Judge Alex Kozinski — and 10 additional judges from the circuit chosen at random would rehear the appeal.

The request for the en banc reconsideration could have been made by any judge of the court prior to March 13 — seven days after the parties’ deadline to request en banc reconsideration — under the court’s rules. The court’s order Thursday gave no explanation as to why the announcement and briefing order only came two weeks after the call from the judge would have had to have been made.

Read the court’s order:

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