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9th Cir Updates: Gay Juror En Banc Denial; No-Fly List Won't Fly

By William Peacock, Esq. on June 24, 2014 | Last updated on March 21, 2019

It's a big day in the Ninth Circuit for two of the biggest legal topics right now: marriage equality and national security. In one case, the appellate court declined to re-hear a case involving a Batson challenge to a gay juror, which leaves a holding that all-but-guarantees marriage equality in the Ninth Circuit remains intact.

And in a second case, now on remand to a district court in Oregon, a judge just ruled that our nation's "No-Fly List," which keeps those who are suspected of having ties to terrorism off of planes but has no procedures to challenge inclusion on the list, is unconstitutional.

En Banc Denied: Gay Juror Batson Ruling, Heightened Protection Stands

Neither party asked for en banc review. Instead, there was a sua sponte call from a Ninth Circuit judge, a call that was apparently in vain.

We covered the decision itself last year: classifications based on sexual orientation are subject to heightened scrutiny (under the vague reasoning of Windsor), and in jury selection, equal protection prohibits peremptory (Batson) strikes based on sexual orientation.

And that's how an antitrust lawsuit turned in to a landmark decision for the marriage equality movement: heightened scrutiny means there is pretty much no chance a gay marriage ban will stand. And the decision, thanks to today's denial and the parties' previously expressed unwillingness to appeal, will likely stand.

Today, the court denied en banc review over the dissent of three judges. Judge Diarmuid O'Scannlain penned a dissent criticizing the panel for overruling past precedent on the basis of Windsor's "rootless and shifting" reasoning, which itself, never addresses rational basis or appropriate levels of scrutiny for sexual preference-based discrimination.

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On Remand: 'No-Fly List' Won't Fly Constitutionally

In 2012, the Ninth Circuit reversed a district court's holding that it could not hear a challenge to the Federal No-Fly List. The appellate court held that its "exclusive" jurisdiction, per the statute, was limited to amending, modifying, or setting aside TSA orders, while substantive matters (such as the plaintiffs' desire to know why they are on the list, and to challenge their inclusion) are in the district court's purview.

On remand, U.S. District Court Judge Anna Brown found for thirteen plaintiffs (four of whom are U.S. military veterans), and ordered the government to come up with new procedures to allow those on the No-Fly List to challenge their inclusion, reports Reuters.

"The court concludes international travel is not a mere convenience or luxury in this modern world. Indeed, for many international travel is a necessary aspect of liberties sacred to members of a free society," Brown wrote.

"Accordingly, on this record the court concludes plaintiffs [sic] inclusion on the no-fly list constitutes a significant deprivation of their liberty interests in international travel."

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