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Gay Juror Ruling Won't Be Appealed, 9th Circuit's Ruling Stands

By Brett Snider, Esq. | Last updated on

The gay juror ruling in Smithkline won't be appealed by AbbVie, an Abbott Laboratories spinoff involved in the case.

A representative for the pharmaceutical company explained Monday that it would not appeal the decision to the U.S. Supreme Court, leaving the Ninth Circuit's ruling intact, reports Reuters. So, how will Smithkline impact the Ninth Circuit now?

AbbVie Says No to Smithkline Appeal

AbbVie is still set for a new trial with GlaxoSmithKline over claims that it was intentionally overpricing critical HIV-treatment drugs. Smithkline dealt with the use of a peremptory challenge to exclude a gay potential juror from the jury pool and whether Batson challenges applied to sexual orientation.

Turns out -- thanks to Windsor -- that they do. This had particular relevance in the Smithkline case because peremptory challenges could be used to remove gay jurors who may have been less sympathetic to AbbVie. No, not all gay jurors hate HIV drug companies, and certainly not all gay persons have HIV or even know someone who has.

But this is exactly the sort of overgeneralization and discrimination that Batson is designed to prevent, and the Ninth Circuit has extended its protection to sexual orientation. This may force AbbVie's attorneys to make for-cause challenges -- e.g. a juror whose partner or friend is taking AbbVie's medication -- to remove jurors.

Smithkline in the Gay Rights Movement

The effects of Smithkline haven't been bounded to the jury pool. In late January, Nevada's Attorney General Catherine Cortez Masto announced that in light of Smithkline, many of the state's arguments against gay marriage were untenable.

This was largely due to the Ninth Circuit's application of the intermediate (or heightened) scrutiny standard for sexual orientation in Smithkline. Well, the Ninth didn't exactly say "intermediate scrutiny," but some form of heightened scrutiny was applied for gays and lesbians that was more than just rational basis review.

Until recently, applying rational basis review for legislation or actions which discriminated against LGBT persons was almost certainly a win for the state. But now with Windsor -- and its corresponding federal challenge progeny -- the tide appears to be turning for applying higher scrutiny toward sexual orientation.

But Smithkline may have already killed hopes for Nevada's defense of its gay marriage ban. On Tuesday, the Ninth Circuit postponed oral arguments for the Nevada gay marriage appeal, but gave no future date for the hearing, reports the Associated Press.

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