Paul McGuire | Legally LGBT
It doesn’t happen very often. Sometimes while a case is waiting to be heard by a court the law changes enough that arguments previously made become indefensible.
When this happens, attorneys are expected to pay attention to these changes and react accordingly. The Nevada Attorney General had filed briefs with the 9th Circuit Court of Appeals in defense of the Nevada ban on same-sex marriage. The same day these briefs were filed the 9th Circuit changed the way it treats equal protection challenges based on sexual orientation. The case involved a challenge to the removal of a gay man from a jury.
That case is known as SmithKline Beecham v. Abbott Laboratories. The ruling in SmithKline is likely to require a ruling that the Nevada same-sex marriage ban is unconstitutional because it requires courts in the 9th Circuit to take a closer look at equal protection challenges to laws that impact a group because of sexual orientation.
In the SmithKline case, the 9th Circuit considered the question of whether it is improper in a civil action to strike a juror on the basis of his sexual orientation. The panel determined that it was.
The panel of judges for the 9th Circuit revisited the previous decisions that had required equal protection challenges based on sexual orientation to be examined under rational basis review. A previous decision that rational basis should apply to such challenges was made in High Tech Gays, a 1990 case decided before The U.S. Supreme Court that decided Lawrence v. Texas.
The panel examined the effect the Windsor decision had on the level of scrutiny required be applied to these challenges. The panel concluded that Windsor applied a form of heightened scrutiny to challenges based on sexual orientation. Prior to the decision in SmithKline, the Nevada Attorney General could have argued that Windsor did not apply heightened scrutiny. However, once the 9th Circuit made it clear that Windsor required heightened scrutiny in the 9th Circuit, those arguments no longer make sense.
Because Nevada is covered by the 9th Circuit, the decision in SmithKline to apply heightened scrutiny to equal protection challenges based on sexual orientation is likely to control the result in the challenge to Nevada’s same-sex marriage ban. As a result, the Nevada Attorney General filed a motion in the 9th Circuit requesting that the State’s previous brief filed in support of the same-sex marriage ban be withdrawn. The 9th Circuit quickly granted that request.
This leaves only the Coalition for the Protection of Marriage to argue at the 9th Circuit level. The Coalition is a Nevada group that was formed when the Nevada amendment was first proposed to ban same-sex marriage. The Coalition has filed briefs in previous marriage cases supporting marriage bans including briefs with the U.S. Supreme Court in support of California’s Proposition 8.
With the Coalition as the only remaining party interested in upholding Nevada’s ban, it might be difficult for a 9th Circuit decision striking down the ban to be appealed to the U.S. Supreme Court. This is because Nevada’s state Attorney General was the last remaining party in the case supporting the interests of the State of Nevada. This means that a decision by the 9th Circuit striking down the ban would likely be controlling throughout the states in the 9th Circuit. At minimum, a favorable decision by the 9th Circuit would also apply to Oregon where same-sex marriage is not yet available but the state does recognize domestic partnerships.
Hopefully the reasoning used by the 9th Circuit in SmithKline will be followed in other circuits considering similar questions over the coming year. This could lead to similar reasoning being used in the 10th Circuit where the challenges to Oklahoma and Utah’s bans are being heard.
—Paul D. McGuire is an openly bisexual family law attorney in San Diego who assists families dealing with dissolution of marriage and domestic partnerships. He writes a blog on family law and LGBT issues at paul-mcguire.com.