Heightened Scrutiny for Sexual Orientation Claims in The Ninth Circuit
A majority of judges sitting on the Ninth Circuit Court of Appeals announced yesterday, June 24, 2014, that they would not grant *en banc review of an earlier three-judge panel opinion finding that sexual orientation discrimination claims are subject to heightened scrutiny review. The decision is binding on Courts in the nine states comprising the Ninth Circuit – Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. Four of these states have pending same-sex marriage cases: Hawaii, Idaho, Oregon and Nevada.
The decision barred discrimination based upon sexual orientation in the context of juror strikes. In reaching its decision, the panel concluded that the Supreme Court’s recent Windsor decision established a higher level of scrutiny for classifications based on sexual orientation. Prior to this decision by the Ninth Circuit, equal protection claims based on sexual orientation were judged under the lowest level of review, rational basis. Now, in matter where gay, lesbian and bisexual persons in the Ninth Circuit are treated differently, it will be more difficult for the alleged discriminator to justify its actions and avoid a discrimination claim.
The Ninth Circuit is the first of the Circuit Courts to reach this conclusion. It is expected that this decision will stand without being heard by the Supreme Court given the fact that it is unlikely either party will pursue an appeal.
Attorney Loren Speziale is a member of the firm’s Litigation Group representing companies and individuals in the court of law.
*en banc refers to cases that are heard by the entire bench of the court, rather than a select panel of judges