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Gay Juror Bias Ruling Stands as Full-Court Review Denied

An appeals court decision not to reconsider a ruling that a gay man’s dismissal from a jury was unlawful was seen by three dissenting judges as setting a precedent that may eviscerate state laws prohibiting same-sex marriage.

The decision yesterday by the U.S. Court of Appeals in San Francisco to reject a request for the entire court to rehear the case leaves intact a January ruling by a three-judge panel. That panel found that equal-protection rights prohibit excluding jurors based on sexual orientation.

The question stemmed from a GlaxoSmithKline Plc lawsuit over an AIDS drug agreement against AbbVie Inc., an Abbott Laboratories spinoff .

Circuit Judge Diarmuid Fionntain O‘Scannlain wrote in a dissenting opinion yesterday that rejecting a full-court review may amount to the court’s “last word” on whether the Constitution requires U.S. states to recognize same-sex marriages.

O‘Scannlain, nominated to the appeals court by President Ronald Reagan, a Republican, wrote the “unprecedented” decision means that the appeals court is the only one in the country to hold that district judges are required under a U.S. Supreme Court decision to apply “heightened scrutiny” to classifications based on sexual orientation in equal-protection cases. The appellate district includes California, Arizona, Washington and six other Western states, some of which have gay-marriage bans facing court challenges.

Higher Standard

Heightened scrutiny is a stricter standard traditionally used to protect racial minorities and women from discrimination. Giving gays such legal protection would buttress their challenges to laws barring gay marriage across the country.

The court’s decision yesterday explained in three sentences that an undisclosed tally of votes fell short of a majority required for a review, without detailing the judges’ reasons. In January, the three-judge panel said the U.S. Supreme Court decision last year striking down a law denying federal benefits to legally married gay couples required the heightened scrutiny standard be applied to jury selection.

O‘Scannlain argued that there was “nothing” in the Supreme Court decision supporting that conclusion.

The panel “produced an opinion with far-reaching -- and mischievous -- consequences, for the same-sex marriage debate and for the many other laws that may give rise to the distinctions based on sexual orientation, without waiting for appropriate guidance from the Supreme Court,” O‘Scannlain wrote.

Dissenting Judges

O’Scannlain was joined in his dissent by Judges Jay S. Bybee and Carlos T. Bea, who were both nominated to the court by President George W. Bush, a Republican.

In the underlying court case, the judge at trial permitted the exclusion during jury selection, when Abbott exercised its right to keep certain individuals off the jury. When questioned, the man said he had a male partner and had lost friends to AIDS, according to court filings.

Adelle Infante, a spokeswoman for AbbVie, didn’t immediately respond to phone and e-mail messages yesterday after regular business hours seeking comment on the order.

The case is SmithKline Beecham v. Abbott Laboratories, 11-7357, U.S. Court of Appeals for the Ninth Circuit (San Francisco)

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