Ninth Circuit Denies Rehearing in Gay Jury Selection Case

On June 24, 2014, the Ninth Circuit denied a sua sponte call for a rehearing en banc by an active judge of the court, in SmithKline Beecham Corp. v. Abbott Labs., Case Number 11-17357, (9th Cir. 2014) (opinion filed January 21, 2014). I previously wrote about this decision, concerning the application of heightened scrutiny to a peremptory strike of a juror who was perceived to be gay, in an antitrust lawsuit involving two pharmaceutical companies, here. In the January 21, 2014 decision, the Ninth Circuit held that during jury selection, equal protection prohibits peremptory strikes based on sexual orientation, thus expanding the protections of Batson v. Kentucky, 476 U.S. 79 (1986), a case which held that potential jurors could not be excluded from serving on a jury because of their race.

Judge O’Scannlain, writing in dissent, argued that the Ninth Circuit was going against the grain of decisions by other circuits that have declined to apply heightened scrutiny to distinctions based on sexual orientation. Judge O’Scannlain further argued that such an important issue should not be decided by a three-judge panel and overrule Ninth Circuit precedent.

Given that neither SmithKline Beecham nor Abbott Laboratories applied for en banc reconsideration, the holding in SmithKline Beecham may be with us for some time.