Smithkline Beecham Corp. v. Abbott Laboratories
759 F.3d 990
9th Cir.2014Background
- The case began as a Batson challenge to a juror strike in an antitrust case.
- The panel applied heightened scrutiny to a classification based on perceived sexual orientation.
- The panel denied rehearing en banc via sua sponte call, which failed to attract a majority of votes.
- Dissent contends Windsor does not require heightened scrutiny for sexual orientation in equal protection.
- Dissent argues the panel abandoned Ninth Circuit precedent (Philips, High Tech Gays) and misread Windsor.
- Dissent warns the decision may influence challenges to same-sex marriage laws and other orientation-based distinctions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Windsor require heightened scrutiny for sexual orientation in equal protection? | O'Scannlain: no; Windsor does not compel heightened scrutiny in equal protection. | Panel: yes; Windsor mandates heightened scrutiny for classifications based on sexual orientation. | Windsor does not compel heightened scrutiny in this context. |
| May a three-judge panel overrule circuit precedent on its own to adopt Windsor’s reasoning? | O'Scannlain: panel cannot overrule binding precedent without en banc review. | Panel: Windsor justifies departing from precedents like Philips and High Tech Gays. | Panel exceeded its authority; Windsor is not clearly irreconcilable with prior precedents. |
| Is the panel’s reliance on Witt to justify heightened scrutiny in equal protection valid? | O'Scannlain: Witt cannot support applying heightened scrutiny to equal protection. | Panel uses Witt as basis to graft heightened scrutiny from substantive due process into equal protection. | Witt does not support heightened scrutiny in equal protection for sexual orientation. |
Key Cases Cited
- Windsor v. United States, 699 F.3d 169 (2d Cir.2012) (applied heightened scrutiny analysis inconsistent with panel’s view; Windsor limited to same-sex marriages recognized by states)
- Windsor, 133 S. Ct. 2675 (Supreme Court 2013) (majority opinion; limited guidance on standard of review for equal protection in this context)
- Philips v. Perry, 106 F.3d 1420 (9th Cir.1997) (precedent supporting rational basis review)
- High Tech Gays v. Defense Indus. Security Clearance Office, 895 F.2d 563 (9th Cir.1990) (precedent supporting rational basis review)
- Witt v. Dep’t of Air Force, 527 F.3d 806 (9th Cir.2008) (discussed as basis for heightened scrutiny in some contexts)
- Romero v. Evans, 517 U.S. 620 (Supreme Court 1996) (rational basis reference in Windsor discussion)
- Romer v. Evans, 517 U.S. 620 (Supreme Court 1996) (rational basis framework cited in Windsor discussion)
- Lawrence v. Texas, 539 U.S. 558 (Supreme Court 2003) (substantive due process context; not an equal protection decision)
- J.E.B. v. Alabama, 511 U.S. 127 (Supreme Court 1994) (Batson expansion tied to heightened scrutiny analysis in later discussions)