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Ninth Circuit asks for briefing on whether LGBT jury discrimination case should be reheard

LGBT Legal Cases Marriage equality Marriage Equality Trials

Ninth Circuit Court of Appeals
Ninth Circuit Court of Appeals
The Ninth Circuit is asking all the parties in SmithKline Beecham v. Abbott Laboratories to file briefs telling the court whether it should rehear the case en banc, with a larger panel of judges. The call apparently came from one or more judges on the court under a rule that allows any judge to call for rehearing on their own after the time expires for a party to ask for rehearing. The case involves a prospective juror who was peremptorily challenged based only on the fact that he’s gay. The Ninth Circuit held that under the Constitution that action is not allowed, and in the process it held that sexual orientation discrimination warrants a heightened form of judicial scrutiny. The heightened scrutiny holding shifts the burden to the government to prove why it should be allowed to discriminate based on sexual orientation.

AbbVie, a spin-off of Abbott Laboratories, had earlier said they won’t petition the Ninth Circuit to rehear the case with a larger panel of judges, nor would they seek Supreme Court review. After that decision, the Ninth Circuit itself decided that it may rehear the appeal and in its filing, it instructs all parties to file briefs within 21 days discussing their position.

If rehearing en banc is ultimately granted after all briefs are filed, the three-judge panel’s initial decision will be wiped out and will not remain precedent. This likely means that the circuit court’s determination that sexual orientation discrimination warrants heightened judicial scrutiny will be reconsidered. The larger panel, 11 judges in the Ninth Circuit, could still reach that same holding in its final decision, however.

State officials in Nevada and Oregon – two states that fall within the Ninth Circuit – have declined to defend their state bans on same-sex marriage, in part because of the SmithKline decision.

The Ninth Circuit has said they will hold oral arguments in the Nevada case as soon as possible, though a date hasn’t been set. The Oregon case is in district court awaiting a decision on the merits.

Thanks to Kathleen Perrin for this filing

83 Comments

  • 1. davep  |  March 27, 2014 at 12:55 pm

    Aw crap. Seems to me that this could cause MORE delays in the Nevada case, if Nevada wants to request that the proceedings be suspended until this final SmithKline decision is reached so they can reconsider whether to continue to decline to defend their ban. wtf.

  • 2. Retired lawyer  |  March 27, 2014 at 1:02 pm

    General Order 5 at the 9th Circuit appears to require a Judge who is sua sponte requesting an en banc rehearing to submit a Memorandum in support of that request. Does anyone know if that document exists and is publicly available?

  • 3. Scottie Thomaston  |  March 27, 2014 at 1:07 pm

    Nevada's AG is a Democrat, and I really don't think they'll change their mind. Her brief had already noted that en banc rehearing was possible, so I don't think they'll be shocked by this.

  • 4. Scottie Thomaston  |  March 27, 2014 at 1:07 pm

    I have no clue, sorry.

  • 5. Warren  |  March 27, 2014 at 1:09 pm

    It reads like a conservative judge in the Circuit Court has been given orders by his conservative leader to ask for the rehearing. Anti-gays don't want us to be a protective class.

    Davep, it has already been reported on this web site that the NV case has been put on hold with no date set for a hearing.

  • 6. Scottie Thomaston  |  March 27, 2014 at 1:10 pm

    Not on hold. They just haven't scheduled argument yet. They had before, but they canceled, probably because it was scheduled for April 9 and one of the attorneys will be at the Tenth Circuit the next day.

  • 7. Ragavendran  |  March 27, 2014 at 1:11 pm

    See Sections 5.4 and 5.5 for the rules here: http://cdn.ca9.uscourts.gov/datastore/uploads/rul

    It seems a vote will be taken 21 days after the briefs are submitted (so, no more than 42 days from today). All active judges will then have 14 days to vote. There is also a procedure laid out to stay the mandate during this process. Sheesh. A delay of two months before we know whether this will be reheard en banc. I wonder who this culprit off-panel judge is who made the sua sponte call.

  • 8. Ragavendran  |  March 27, 2014 at 1:13 pm

    I checked PACER and there is no publicly available memo yet. Perhaps that is for internal circulation only. Even internally, I'm not sure if the identity of the judge who made the call will be revealed to the other judges.

    The rule you are referring to (5.4.c.1) says, "the requesting judge shall notify the panel and all other members of the court of any call, and shall forward a memorandum setting forth reasons [...] within 7 days after the circulation of the simultaneous briefing." Maybe we have to wait until the briefing is complete for this "memo".
    http://cdn.ca9.uscourts.gov/datastore/uploads/rul

  • 9. Larry  |  March 27, 2014 at 1:21 pm

    My money's on Diarmuid O'Scannlain. He's the judge who seems to always write scathing dissents on rehearing any LGBT rights case.

  • 10. davep  |  March 27, 2014 at 1:24 pm

    Thanks, that's encouraging. I had been under the impression that Nevada's decision to stop defending their ban was closely related to the heightened scrutiny decision in SmithKline, rather than being based on the AG's determination that the ban was unconstitutional regardless, as has been the case in other states. Good!

  • 11. SoCal_Dave  |  March 27, 2014 at 1:34 pm

    This is one of the reasons I love coming here to EoT – I learn so much. However, this time I'm not very happy to learn about this procedure. Both parties have accepted the decision and neither of them wants to go any further, yet someone on the court can force them to?
    I can't imagine it's someone who agrees with the panel's decision. :-(

  • 12. Lee  |  March 27, 2014 at 1:35 pm

    I bet somebody from the Mormon church asked one of the Bush appointed Mormon judges to do that.

  • 13. Fr. Bill  |  March 27, 2014 at 1:36 pm

    Quite possible. But orders may be coming out from SLC or certain uber conservative groups. It is likely that something this big will be leaked.

  • 14. Ragavendran  |  March 27, 2014 at 1:38 pm

    I hear you… I don't see how a majority of this liberal-leaning court will vote for an en banc rehearing though. We'll wait and see how persuasive the briefs/memo are. This just seems like it's going to add extra delay to this case. Nothing more than that.

  • 15. jpmassar  |  March 27, 2014 at 2:03 pm

    I don't get it.

    The losing party said they didn't want to appeal. So who is going to pay for the time spent creating these briefs on the losing side that the 9th Circuit is "requesting."

    What if the losing party just doesn't submit anything?

  • 16. Scottie Thomaston  |  March 27, 2014 at 2:18 pm

    I'm really confused too. Kathleen Perrin did say that the parties have to pay for the briefs/the time. But it's two huge corporations, so I doubt they lack the money.

  • 17. JimT  |  March 27, 2014 at 2:29 pm

    I hope the Rachel Maddow Show staff picks up on this as it is definitely the type of story they might dig into.

  • 18. SeattleRobin  |  March 27, 2014 at 2:31 pm

    I agree this is disappointing and frustrating. But also understandable in a way. Most courts have been very reluctant to declare that sexual orientation deserves heightened scrutiny. So I can see why it could be questioned. An en banc hearing may be to our ultimate advantage, assuming they properly agree with heightened scrutiny. I would think the finding from a full panel would carry more weight than just from a three judge panel.

    I totally agree with you about learning so much here. Before I started following the Prop 8 case here when it went to trial, I had no clue what en banc meant, among many other terms and procedures.

  • 19. Tim  |  March 27, 2014 at 2:36 pm

    If Nevada doesn't seek a delay, might the 9th delay it on their own? Do they have to resolve the heightened scrutiny question before deciding any more cases on sexual orientation like Nevada's? Or could they still hear the Nevada case, wait to see how SmithKline gets finalized, and then issue their Nevada ruling?

  • 20. Cherylg43  |  March 27, 2014 at 3:01 pm

    Lyle Denniston at scotusblog has post a comment the issue. http://www.scotusblog.com/2014/03/defining-a-lega

  • 21. Chris M.  |  March 27, 2014 at 3:12 pm

    Abbott can't be too happy with the prospect of having to argue in full limelight that discriminating against a gay juror because of his sexual orientation is ok. This is a potential public relations disaster for them, and likely the reason why they didn't appeal to begin with. Perhaps their PR folks can convince them to reverse position in the new brief, then there is no one left to argue the Mormon church's view, and an en-banc hearing will be moot?

  • 22. Ragavendran  |  March 27, 2014 at 3:34 pm

    Yes, but an en banc panel could also avoid the scrutiny question altogether – they don't have to review everything the 3-judge panel wrote in their opinion…

    About the learning, yes – couldn't agree more! I'm not a lawyer and only got interested in the legal landscape since last June. This site has been a revelation!

  • 23. Dr. Z  |  March 27, 2014 at 3:41 pm

    The Oregon AG is similarily unlikely to change her mind- last October the AG office already issued an advisory to all state agencies that Oregon's mini-DOMA was unconstitutional insofar as out of state SSMs were concerned, and cast strong doubt on its prohibition of in-state marriages. That was well before the SmithKline decision.

    Something tells me that neither party in SmithKline has much appetite for rehashing this at the en banc level, and will say so in their briefs. AbbVie doesn't want to look like it's an antigay villain, and more or less said as much in its press release when it declined to appeal to SCOTUS. The pharmeceutical industry remembers what a black eye it got from ACT-UP, and that was long before opinion changed on marriage equality. They are pretty sensitive to this kind of bad press, there are enough people who already think Big Pharma is evil incarnate without stirring up more sh*t unnecessarily. (Full disclosure: for many years I was a pharmacy IT manager; I was also in ACT-UP.)

    So my bet is that the rabidly homophobic judges on the Ninth (and there are three or four at least) aren't going to get much of a boost from AbbVie. But it will sow uncertainty and delay the Ninth even further in the Sandoval case, which may be the real goal here. It's pure scorched earth tactics.

  • 24. Dr. Z  |  March 27, 2014 at 3:48 pm

    Yes, if memory serves he volunteered an antigay opinion on the Prop 8 case when he wasn't even one of the judges assigned to the case.

  • 25. SoCal_Dave  |  March 27, 2014 at 3:52 pm

    I have no idea if it works that way, but sounds like a great idea to me!

  • 26. Dr. Z  |  March 27, 2014 at 3:54 pm

    I suggest a little demonstration by Queer Nation in front of the AbbVie headquarters would very quickly convince them that it's not in their interest to pursue an en banc. The whole reason they objected to having a gay juror in the first place was because they were afraid of ACT-UP.

    It wouldn't need to be a large demo. Five or ten people would do the trick, then upload the video to YouTube and alert Joe.My.God, Towleroad, etc. AbbVie would quickly take the hint.

  • 27. Craig Nelson  |  March 27, 2014 at 3:55 pm

    This could be seen as a good thing as it gives 9th circuit the chance to solidify its doctrine after an en banc consideration of some kind which is more likely to prove persuasive in other circuits of appeal and in SCOTUS.

  • 28. Pat  |  March 27, 2014 at 3:57 pm

    So following the ruling, no party bothered arguing the case further, but the court itself asks again to file briefs about whether to rehear the case?? Now what if both sides file briefs saying "thanks, but no thanks" ? The court might still say: "Oh, anyway, let's rehear this thing again!"

    This circuit is already notoriously slow (as we've seen with the Sevcik case) but still they generate more delays… Unbelievable…

  • 29. SoCal_Dave  |  March 27, 2014 at 4:04 pm

    OK, now having followed Cheryl's link below (thanks, Cheryl) to another link from there, I arrived at this… http://sblog.s3.amazonaws.com/wp-content/uploads/
    "A sua sponte en banc call having been made, the parties are instructed to file
    within 21 days of the filing date of this order simultaneous briefs setting forth their
    respective positions on whether the case should be reheard en banc."
    So if I'm reading this right, what they have to produce is not their arguments about the case, but their reasons why the case should or should not be reheard en banc. This makes it sound like Chris M's idea is on the mark. But instead of reversing position on the merits, they have only to maintain their position on en banc, which is "we don't want that".
    OK, how far off base have I gone? :-S

  • 30. Chad  |  March 27, 2014 at 4:06 pm

    Nevada's governor is a Republican though, and he could very well change his mind.

  • 31. Lymis  |  March 27, 2014 at 4:15 pm

    At the same time, even if both parties agree, could the en banc hearing validate that and then declare that heightened scrutiny doesn't need to apply?

  • 32. Fr. Bill  |  March 27, 2014 at 4:26 pm

    I absolutely with Chris that this is a nightmare for Abbott. I would guess that even Smith-Kline would probably like to be cut loose from this PR disaster. Before changing careers I was general counsel of a large corporation. I would be very unhappy to find myself in this situation. I would suggest they might consider filing simultaneous briefs ASAP (e.g. tomorrow) stating that they have nothing to add to the arguments made in the briefs already filed and have decided on commercial grounds not to pursue this litigation any further.

    I would also suggest to my CEO and Board to support a PR campaign stressing how we value all our employees, customers and investors equally. I would also remember forever whoever it was that dragged me into this disaster.

  • 33. Eric  |  March 27, 2014 at 4:47 pm

    Abbott must be annoyed, they spun off the subsidiary causing this issue back in 2013.

  • 34. Rick O.  |  March 27, 2014 at 6:34 pm

    "uncertainty & delay" – precisely the goal of the 3 (?) judges who probably forced this. And it works. Do you think Scalia made a couple of telephone calls? The heightened scrutiny thing is a very big deal, and I can see why "they" would rather the country arrives at SSM without it.

  • 35. Dr. Z  |  March 27, 2014 at 7:07 pm

    I don't it's necessary to posit any kind of conspiracy – O'Scannlain is quite crazy enough on his own, he needs no prodding. He and a couple of other Ninth circuit judges pulled something similar during the Prop 8 trial, volunteering their legal opinion on the case when nobody had even asked them.

  • 36. Tim  |  March 27, 2014 at 7:09 pm

    Pat- I have this same question that you have…

    Now what if both sides file briefs saying "thanks, but no thanks" ? The court might still say: "Oh, anyway, let's rehear this thing again!"

  • 37. Dr. Z  |  March 27, 2014 at 7:21 pm

    Ah yes, here it is. After the Proponents of Prop 8 lost in a 2-1 decision on appeal, they requested the Ninth rehear the appeal en banc. The Ninth denied the request for en banc, but O'Scannlain issued an unusual dissent to the Ninth's denial of the motion. (Hopefully this link will work, I'm working off a tiny keyboard with minimal editing abilities.)

    O'Scannlain also issued a decision in 2010 that the Seattle police did not use excessive force when they Tasered a pregnant woman. A real class act all around.
    http://www.google.com/url?sa=t&source=web&amp

  • 38. Tim  |  March 27, 2014 at 7:22 pm

    Any updates on progress on the rest of the cases in the 4th Circuit? (besides what's on Freedom to Marry and Marriage Equality's websites)

    West Virginia, North Carolina, South Carolina. Also, the Harris case in Virginia. (I know they can intervene in Bostic and their judge said he could rule on the info from the Bostic case).

    Those judges waiting to see what the 4h Circuit does on the Bostic case since they're in the same circuit? All I hear are crickets.

  • 39. Ragavendran  |  March 27, 2014 at 9:46 pm

    Here's what PACER says:

    Harris v. Rainey [VA]
    A status conference was held February 19, during which the Plaintiffs strongly opposed staying of the proceedings of the case pending the 4th Circuit appeal. They requested a ruling on the merits (a summary judgment) or go forward with a trial. Judge Urbanski could, any day now, either stay the proceedings, issue a summary judgment, or decide to hold a trial.

    Fisher-Borne v. Smith [NC]
    There are a couple of motions to dismiss, which could be ruled upon any day now. This case is still in very early stages, despite having started in mid-2012.

    Bradacs v. Haley [SC]
    Again, early stage. Plaintiffs recently filed an amended complaint against the defendants and a response was received two days ago. Cross-motions due by April 11. The records are full of orders granting time extensions to file briefs/motions/responses.

    McGee v. Cole [WV]
    Briefing is almost complete in cross-motions for summary judgment. The judge could decide to schedule a hearing for oral argument, or rule directly on the briefs in the upcoming weeks.

  • 40. Ragavendran  |  March 27, 2014 at 9:54 pm

    If that happens, then why should the Court even bother to hold oral argument again, when neither side is particularly enthusiastic to stage an encore? The en banc panel (if they insist on rehearing) should just listen to the audio recording, review existing briefs, and issue their decision.

  • 41. Tim  |  March 27, 2014 at 10:05 pm

    Thank you so much. How much would you say you spend on PACER? It charges by the page, right? It's new to me so I'm unfamiliar.

  • 42. Ragavendran  |  March 27, 2014 at 10:10 pm

    Yeah, it is 10 cents per page, not to exceed $3 per document/request. I've been using it a lot since I signed up for it just a few weeks ago. It charges me quarterly if the accumulated charges exceed $25, so I'll have to wait for my first quarter bill to see how much I've splurged so far and then learn to restrain myself accordingly! I try not to view the full docket every time (only for new cases). That way, checking for an update on a case costs me only 20 cents per update.

  • 43. Tim  |  March 27, 2014 at 10:26 pm

    So just had a thought…. If the 9th circuit rehears the case, and Sevcik is being delayed because of it, won't briefing for Sevcik have to be updated (say, for example, if scrutiny level changes)?This could mean more delays for the plaintiffs.

  • 44. Ragavendran  |  March 27, 2014 at 10:26 pm

    Not surprisingly, Fifth Circuit just upheld the constitutionality of Texas abortion law, ruling against Planned Parenthood et al. I don't doubt that SCOTUS will take up an appeal during its next term. There are four votes there. http://sblog.s3.amazonaws.com/wp-content/uploads/

    The Tenth Circuit recently released media orders for the upcoming oral arguments in Kitchen and Bishop. Absolutely no blogging, tweeting, audio/video/photo recording allowed. The audio recording will be made publicly available on the court's website within 24 hours. While the order says that there will be an overflow courtroom to accommodate more people, it wasn't explicit whether the restrictions applied to that courtroom as well. I wonder if the EoT team will be able to, for example, live blog from the overflow courtroom.

  • 45. Ragavendran  |  March 27, 2014 at 10:38 pm

    I bet the parties in Sevcik will want to file supplemental briefs now in light of what happened today, and would tell the Court how they'd like to proceed. (If they don't, I wouldn't be surprised if the Court explicitly requests them.) No doubt the Coalition will want to proceed without waiting for final disposition of SmithKline. If our side is confident that we don't need the SmithKline crutch (we didn't and weren't counting on it before, and we don't have it in other circuits anyway), then I guess there will be a consensus to simply proceed "expeditiously" without having to wait.

    Then again, I wouldn't at all be surprised if this is completely ignored by the clerk-in-charge and a date for oral argument is scheduled in the coming week or so.

  • 46. Mike in Baltimore  |  March 27, 2014 at 10:44 pm

    In other news, the Maryland legislature has approved a bill outlawing discrimination against transgenders relating to housing, employment, credit and use of public accommodations.

    The bill now awaits the Governor's signature. Nina Smith, a spokeswoman for the Governor O'Malley says he will sign the measure.
    ( http://www.wbaltv.com/politics/bill-to-stop-trans… )

    Also, the Washington Post has an article: http://www.washingtonpost.com/local/md-politics/m

  • 47. Stefan  |  March 27, 2014 at 10:46 pm

    Likely it will cause no delay, since the Attorney Generals of both states have acknowledged the possibility and have declined to defend their state bans.

  • 48. Stefan  |  March 27, 2014 at 11:16 pm

    Given this timetable, it's likely oral arguments for Sevik will already have been heard by the time the decision to hear SmithKline en-banc is handed down, so the heightened scrutiny ruling will still apply.

  • 49. Pat  |  March 27, 2014 at 11:40 pm

    Well thats the thing: they might very well take several more months to even schedule a date for the Sevcik oral arguments.

  • 50. Zack12  |  March 28, 2014 at 12:01 am

    As Dr. Z said , Diarmuid O'Scannlain is the likely culprit but G.W. appointees Carlos Bea, Jay Bybee, Milan Smith and Norman Randy Smith are likely behind it as well.
    Bea is simply a bigot, the last three are all Mormon and if you remember back to Prop 8, Randy Smith is the one who wrote a dissent in that case.
    They know equality is coming but like the rest of the bigots, they will do their best to drag it out as long as possible.

  • 51. Stefan  |  March 28, 2014 at 12:42 am

    I highly doubt it given the attention being paid to the case.

  • 52. JustMe  |  March 28, 2014 at 6:30 am

    Why do you say "not surprisngly?"

    To say that a law regulating doctors is unconstitutional is beyond the pale.

    I dont see you saying the same thing about what the doctors in MA are doing to Justina Pelletier…

  • 53. USA: Ninth Circuit May Re&hellip  |  March 28, 2014 at 7:06 am

    […] Equality in Trial explains: […]

  • 54. JayJonson  |  March 28, 2014 at 7:19 am

    That could well be. I believe that Judge N. Randy Smith, who cast the dissenting vote in the Prop 8 case at the Ninth Circuit, is a Mormon. Luckily, his dissent was so vacuous that the whole court refused an en banc rehearing.

  • 55. ABC  |  March 28, 2014 at 7:20 am

    As a Mormon, that is insulting. Our church does oppose same-sex marriage (and I do too) but that is not how we work.

  • 56. JayJonson  |  March 28, 2014 at 7:32 am

    Well, of course, that is logical. But the judge (or judges) who filed this motion could care less about whether Abbott or SmithKline win the case. He or she are concerned only with the issue of heightened scrutiny. What I suspect will happen is that the Court will decline to hear the request for an en banc hearing knowing full well what the stakes are. That will itself strengthen the heightened scrutiny doctrine because the judges who vote on the motion will know what they are really voting on. Similarly, as Craig Nelson writes above, if an en banc hearing is granted and the Court reaffirms the heightened scrutiny logic of the original panel, that too will strengthen the ruling and perhaps persuade other circuits to adopt the same doctrine.

  • 57. JimT  |  March 28, 2014 at 7:33 am

    The Mormons have funneled millions of dollars into anti-gay marriage campaigns and from what I understand backed a move to hide the donors list in one state so nobody would know so I would have disagree with your statement "that is not how we work."

  • 58. Zack12  |  March 28, 2014 at 7:46 am

    Nice for you to make your and your church's stance clear, hence the reason we bring up the fact they are Mormons.
    The judges who issued negative rulings against us in NV and HI at the district level were both Mormons as well.
    Bottom line, they can't seperate your church's stance on gay marriage from the law, hence why we think one or all of the ones on the 9th have something to do with this.

  • 59. ABC  |  March 28, 2014 at 8:34 am

    I only meant to critique he idea that SLC influenced them; not that they might have chosen en banc.

    Anyways, isn't O'Scannlin the first candidate for this anyhow?

  • 60. Dr. Z  |  March 28, 2014 at 8:57 am

    Well, not to put too fine a point on it but the LDS church has a documented history of lying and deception. See "milk before meat", for example.

  • 61. Dr. Z  |  March 28, 2014 at 9:00 am

    "Not surprisingly" because the Fifth circuit is arguably the most conservative in the country.

  • 62. Dr. Z  |  March 28, 2014 at 9:08 am

    IANAL, but doesn't a case or controversy have to exist before the federal judiciary can weigh in? If neither party in SmithKlein wants an en banc rehearing I don't see how the Ninth could decide on its own to rehear the case. Where is the dispute?

  • 63. Ragavendran  |  March 28, 2014 at 9:33 am

    Yeah, Dr. Z is correct. I'm not surprised that the Fifth ruled this way. That doesn't mean I agree with them.

  • 64. SoCal_Dave  |  March 28, 2014 at 9:43 am

    He says "not surprisingly" because he's not surprised.

  • 65. Zack12  |  March 28, 2014 at 9:49 am

    I fully expect them to rule against us on the marriage issue as well.

  • 66. Fr Bill  |  March 28, 2014 at 9:56 am

    I believe the district court judge in Hawaii why filed against ME was a Mormon also.

  • 67. Zack12  |  March 28, 2014 at 10:07 am

    He was indeed.

  • 68. RAJ  |  March 28, 2014 at 10:09 am

    And Judge Dale A. Kimball, who should be issuing his ruling in the ACLU's Evans et al. v. State of Utah et al. is VERY Mormon.

    Magna cum laude from BYU, leadership roles including bishop, high councilor, stake president, and Regional representative of the Twelve.
    http://en.wikipedia.org/wiki/Dale_A._Kimball

  • 69. RAJ  |  March 28, 2014 at 10:11 am

    Of course, that case doesn't concern the 9th district.

  • 70. Steve  |  March 28, 2014 at 10:33 am

    Gross. He obviously isn't qualified to be impartial

  • 71. KarlS  |  March 28, 2014 at 10:39 am

    All religions are idiotic and delusional. Yours is right up at the top of the list. Golden plates, my ass.

  • 72. Tim  |  March 28, 2014 at 11:06 am

    If I remember correctly, his questioning of the state didn't go well for the state. It was looking good for the plaintiffs. He was nominated by Bill Clinton.

  • 73. Zack12  |  March 28, 2014 at 11:15 am

    N Gordon Smith asked tough questions during the Prop 8 hearings yet ruled against us.
    We'll just have to wait and see.

  • 74. Eric  |  March 28, 2014 at 12:16 pm

    The decision is not final yet and this is part of the circuits internal process.

  • 75. Tim  |  March 28, 2014 at 2:21 pm

    Yeah, we'll see. He also made some interesting comments to the state.
    “If they are married, they are married,” Kimball said at one point.
    http://www.lgbtqnation.com/2014/03/utah-tells-jud

  • 76. KarlS  |  March 28, 2014 at 3:18 pm

    If you're wondering why not only intelligent people but even idiot fundy members of OTHER delusional belief systems think your church is batshit nuts, read this: http://godisimaginary.com/i7.htm

  • 77. RAJ  |  March 29, 2014 at 11:22 am

    Tim,

    I take your point. While I remain hopeful and there are definitely reasons to be encouraged, I had a similar feeling of encouragement with N. Randy Smith (9th circuit panel reviewing Judge walker's Prop 8 decision), only to later read through his disappointing dissent and think, of course, what did I expect? I've learned to be cautious when it comes to Mormon jurists.

    I would LOVE to be proven wrong about an assumed bias on Kimball's part. As you and others have said, we'll just have to wait and see. That's one decision I plan to read from start to finish.

  • 78. MNbob  |  March 30, 2014 at 1:04 am

    This is why you don't discriminate against people. You get legally binding answers to questions you didn't ask for.

  • 79. Ollie  |  March 30, 2014 at 6:41 pm

    Thanks! I'd be embarrassed to have my backwards thinking memorialized in the public record like this.

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  • 81. Wylde Abandyn  |  April 19, 2014 at 7:39 am

    SmithKline filed their brief yesterday… they do not want the case reheard en banc… http://cdn.ca9.uscourts.gov/datastore/general/201

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  • 83. Equality On TrialPlaintif&hellip  |  August 7, 2014 at 1:32 am

    […] in the Ninth Circuit, and although no party to the case wanted it reheard, a Ninth Circuit judge has called for a vote. If it were to be heard again, the three-judge panel’s decision would be wiped […]

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