On February 10, Nevada's Democratic attorney general decided to stop defending the state's constitutional amendment banning same-sex marriage, which is currently under review in the U.S. Court of Appeals for the Ninth Circuit. Perhaps even more surprising, Nevada's Republican governor agreed with that decision, concluding that the "case is no longer defensible in court." Ironically, all of this came after the plaintiffs had lost their case in the district court. But the federal constitutional landscape surrounding same-sex marriage is rapidly shifting, and in the nation's largest circuit change is coming quickly indeed. The latest upheaval—the decision that in fact prompted Nevada's about-face—is SmithKline Beecham Corp. v. Abbott Laboratories, in which the Ninth Circuit held that the Equal Protection Clause prohibits peremptory strikes against gay jurors. The larger significance of SmithKline, however, is the court's conclusion that the Supreme Court's decision in United States v. Windsor requires it to apply heightened judicial scrutiny to equal protection claims based on sexual orientation. This is consistent with the court's 2008 decision—in the wake of Lawrence v. Texas—that applied heightened scrutiny to such claims brought under the Due Process Clause. Thus, the Ninth Circuit has twice said what Justice Kennedy could not quite bring himself to say-that the Supreme Court exercises something more stringent than rational basis review in sexual orientation cases—and in doing so it perpetuated a split among the circuits that may eventually force the Court's hand.
The Ninth Circuit's Treatment of Sexual Orientation: Defining “Rational Basis Review with Bite”,
Mich. L. Rev. First Impressions
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