                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

SMITHKLINE BEECHAM                       No. 11-17357
CORPORATION, DBA
GlaxoSmithKline,                        D.C. No.
          Plaintiff-Appellee,      4:07-cv-05702-CW

             v.

ABBOTT LABORATORIES,
       Defendant-Appellant.



SMITHKLINE BEECHAM                       No. 11-17373
CORPORATION, DBA
GlaxoSmithKline,                        D.C. No.
         Plaintiff-Appellant,      4:07-cv-05702-CW

             v.
                                           ORDER
ABBOTT LABORATORIES,
        Defendant-Appellee.


                   Filed June 24, 2014

    Before: Mary M. Schroeder, Stephen Reinhardt,
        and Marsha S. Berzon, Circuit Judges.

                         Order;
             Dissent by Judge O’Scannlain
2    SMITHKLINE BEECHAM V. ABBOTT LABORATORIES

                           SUMMARY*


                         Equal Protection

    The panel filed an order rejecting a sua sponte en banc
call.

    In its opinion filed January 21, 2014, the panel reversed
the district court’s judgment in an antitrust case concerning
a licensing agreement and the pricing of HIV medications.
The panel held that classifications based on sexual orientation
are subject to heightened scrutiny, and that in jury selection,
equal protection prohibits peremptory strikes based on sexual
orientation.

    Dissenting from the denial of rehearing en banc, Judge
O’Scannlain, joined by Judges Bybee and Bea, wrote that the
panel was wrong in holding that courts are required by United
States v. Windsor, 133 S. Ct. 2675 (2013), to apply
heightened scrutiny to classifications based on sexual
orientation for purposes of equal protection.           Judge
O’Scannlain wrote that other circuits have held to the
contrary and that the question whether Windsor subjects
traditional marriage laws and others that may give rise to
distinctions based on sexual orientation to heightened
scrutiny is a question of exceptional importance.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
    SMITHKLINE BEECHAM V. ABBOTT LABORATORIES                3

                          ORDER

    A sua sponte call for a vote on rehearing this case en banc
was made by an active judge of this court. The call failed to
receive a majority of the votes of the nonrecused active
judges. Fed. R.App. P. 35. The sua sponte en banc call is
rejected.

  Judges Graber, McKeown, Wardlaw, M. Smith, Watford,
Owens and Friedland were recused.

   Judge O’Scannlain’s dissent from denial of rehearing en
banc is filed concurrently with this Order.




O’SCANNLAIN, Circuit Judge, joined by BYBEE and BEA,
Circuit Judges, dissenting from the denial of rehearing en
banc:

    This case started out as an antitrust dispute between drug
manufacturers and came to our court in the posture of an
appeal from a simple juror selection ruling during trial.
Sadly, it has morphed into a constitutional essay about equal
protection and sexual orientation sweeping far beyond mere
administration of Batson v. Kentucky, 476 U.S. 79 (1986).
The opinion’s unprecedented application of heightened
scrutiny to a peremptory strike of a juror who was perceived
to be gay bears significant implications for the same-sex
marriage debate and for other laws that may give rise to
distinctions based on sexual orientation.
4    SMITHKLINE BEECHAM V. ABBOTT LABORATORIES

    Indeed, today’s opinion is the only appellate decision
since United States v. Windsor, 133 S.Ct. 2675 (2013), to
hold that lower courts are “required by Windsor to apply
heightened scrutiny to classifications based on sexual
orientation for purposes of equal protection.” 740 F.3d 471,
484 (9th Cir. 2014). Such holding is wrong, egregiously so.
Because of the danger that district courts will be misled by
the opinion’s sweeping misinterpretation of Windsor, it is
most unfortunate that we denied rehearing en banc. I
respectfully must dissent from our regrettable decision to do
so.

                                 I

    The consequences of this opinion reach far beyond the
treatment of Batson challenges. Consider the mischief it has
already wrought. In the view of many, the application of
heightened scrutiny in this case precludes the survival under
the federal Constitution of long-standing laws treating
marriage as the conjugal union between a man and a woman.
See, e.g., Order at 4, Latta v. Otter, No. 14-35420 (9th Cir.
May 20, 2014) (Hurwitz, J., concurring) (noting the opinion’s
heightened scrutiny determination and concluding that
“[g]iven that high burden, it is difficult to see how the . . .
appellants can make a ‘strong showing’ that they will prevail
in their defense of [Idaho’s] measure[.]”). As a result of the
decision, state officials charged with defending such laws in
this court have already abdicated their task, invoking this
case. See Mot. for Leave to Withdraw Brief, Sevcik v.
Sandoval, No. 12-17668 (9th Cir. Feb. 10, 2014) (Nevada
Governor and Attorney General); Resp. to Mot. for Summ. J.
at 13–14, 34, Geiger v. Kitzhaber, No. 6:13-cv-01834 (D. Or.
Mar. 18, 2014) (Oregon Governor and Attorney General). As
a result, this is not just a Batson decision. It is perhaps all but
         SMITHKLINE BEECHAM V. ABBOTT LABORATORIES                     5

this court’s last word on the question whether the
Constitution will require States to recognize same-sex
marriages as such—a question the Supreme Court in Windsor
consciously decided not to answer.1

   Moreover, as the first opinion among our sister circuits to
apply heightened scrutiny to an equal protection claim in light
of Windsor, it is likely a bellwether—or, perhaps, a
premonitory harbinger. Every circuit court but our own
—and the Second Circuit in Windsor, in a maneuver the
Supreme Court declined to follow—has held to the contrary.2
Once again we are on the short end of a 10–2 split among our


     1
     States, of course, remain entirely free to legislate changes to the
definition of marriage to include same-sex unions, and eleven states have
done so, including two within our Circuit. See, e.g., Haw. Rev. Stat.
§§ 572-1–572-1.8 (2013); Wash. Rev. Code § 26.04.020 (2012).
Interestingly, Oregon advocates of same-sex marriage dropped a planned
ballot measure in light of the Oregon district court decision in Geiger
holding Oregon’s law unconstitutional. See Jeff Mapes, Gay Marriage:
Supreme Court declines to halt same-sex marriages in Oregon, The
Oregonian, June 4, 2014, http://www.oregonlive.com/mapes/index.ssf/
2014/06/gay_marriage_supreme_court_dec.html (last visited June 11,
2014).
 2
    See Massachusetts v. Dep’t of Health and Human Servs., 682 F.3d 1,
9–10 (1st Cir. 2012) (applying rational basis review); Price–Cornelison
v. Brooks, 524 F.3d 1103, 1113 n.9 (10th Cir. 2008) (same); Scarbrough
v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006) (same);
Citizens for Equal Protection v. Bruning, 455 F.3d 859, 866 (8th Cir.
2006) (same); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004)
(same); Lofton v. Sec’y of Dep’t of Children and Family Servs., 358 F.3d
804, 818 (11th Cir. 2004) (en banc) (same); Nabozny v. Podlesny, 92 F.3d
446, 458 (7th Cir. 1996) (same); Thomasson v. Perry, 80 F.3d 915, 928
(4th Cir. 1996) (same); Steffan v. Perry, 41 F.3d 677, 684–85 (D.C. Cir.
1994) (same); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir.
1989) (same).
6       SMITHKLINE BEECHAM V. ABBOTT LABORATORIES

sister circuits. We have misled district courts within our
Circuit by forcing them to join us out on this limb and have
offered those around the country an invitation—to many of
them, welcome—to do the same.3 See, e.g., Wolf v. Walker,
No. 3:14-cv-00064, 2014 WL 2558444, at *24–29, — F.
Supp. 2d — (W.D. Wis. June 6, 2014) (noting the panel’s
opinion in concluding that heightened scrutiny applies);
Whitewood v. Wolf, No. 1:13-cv-1861, 2014 WL 2058105, at
*11 n.10, — F. Supp. 2d — (M.D. Pa. May 20, 2014) (same);
Latta v. Otter, No. 1:13-cv-00482, 2014 WL 1909999 at
*16–17, — F. Supp. 2d — (D. Idaho May 13, 2014) (same);
Henry v. Himes, No. 1:14-cv-129, 2014 WL 1418395, at *14,
— F. Supp. 2d — (S.D. Ohio Apr. 14, 2014) (same).4 The
motivating question behind the opinion—whether Windsor
subjects traditional marriage laws and others that may give
rise to distinctions based on sexual orientation to heightened
scrutiny—is truly one of exceptional importance, one that
should not have been decided in the guise of a challenge to a
peremptory strike during jury selection in an antitrust suit.




    3
   Of course some such courts have followed a different line of reasoning
than the panel’s after noting, to their credit, that the opinion was not final.
See, e.g., Geiger v. Kitzhaber, No. 6:13-cv-01834, 2014 WL 2054264, at
*8–9 (D. Or. May 19, 2014) (McShane, J.).
 4
   See also De Leon v. Perry, 975 F. Supp. 2d 632, 652 (W.D. Tex. 2014)
(considering that panel’s application of heightened scrutiny increased
likelihood of success on the merits at injunction stage); Bostic v. Rainey,
970 F. Supp. 2d 456, 482 n.16 (E.D. Va. 2014) (concluding law failed
rational basis review but noting inclination to apply heightened scrutiny
based on the panel’s opinion); Bourke v. Beshear, No. 3:13-cv-750, 2014
WL 556729, at *4 (W.D. Ky. Feb. 12, 2014) (noting panel’s opinion in
discussing likely future application of heightened scrutiny).
     SMITHKLINE BEECHAM V. ABBOTT LABORATORIES                           7

                                    II

    In concluding that heightened scrutiny applies to
distinctions based on sexual orientation, the panel abandoned
our circuit precedents, arrogating to itself, regrettably, the
power of an en banc court. The panel’s reliance on Witt v.
Dep’t of Air Force, 527 F.3d 806 (9th Cir. 2008), reveals the
driving force behind this opinion, the panel’s eagerness to
reach the heightened scrutiny question. Our existing
precedents had already settled that rational basis review, not
heightened scrutiny, applies to this case—the panel had only
to follow them. See Philips v. Perry, 106 F.3d 1420, 1425
(9th Cir. 1997); High Tech Gays v. Defense Indus. Security
Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990). Even
when, in a misreading of Lawrence v. Texas, 539 U.S. 558
(2003), we applied heightened scrutiny to distinctions based
on sexual orientation in the substantive due process context,
we declined to do so in the equal protection context because
Lawrence is not an equal protection case. See Witt, 527 F.3d
at 821. But today a three-judge panel, dissatisfied with the
existing state of the law, casts off our precedents prescribing
rational basis review of the juror selection claim in this case.

    No three-judge panel has the power to overrule existing
Ninth Circuit precedent. In an extremely narrow exception,
our court requires invocation of “clearly irreconcilable”
higher authority for one panel to overrule the prior decision
of another. See Miller v. Gammie, 335 F.3d 889, 893 (9th
Cir. 2003) (en banc).5 Although the panel fails to explain


 5
   Our three-judge panels frequently reject invitations to overrule binding
circuit precedent. See, e.g., United States v. Albino-Loe, 747 F.3d 1206,
1212–14 (9th Cir. 2014); United States v. Dunn, 728 F.3d 1151, 1156–58
(9th Cir. 2013); Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159,
8    SMITHKLINE BEECHAM V. ABBOTT LABORATORIES

why Windsor is clearly irreconcilable with our precedents, it
stunningly determines that its sweeping reading of that case
justifies one three-judge panel in overruling two binding
precedential decisions. If our court wished to adopt the “new
perspective” divined in Windsor, 133 S.Ct. at 2689, as its
own, we should have reheard this case en banc to permit
legitimate reconsideration of Philips and High Tech Gays.
Instead, we have allowed one three-judge panel to cast aside
our circuit precedents on its own in a display of judicial will
that reflects little of the judgment we are charged to exercise.

                                   III

                                   A

    And nothing in Windsor compels the application of
heightened scrutiny to this juror selection challenge. Far less
can Windsor be considered “clearly irreconcilable” with our
rational basis precedents in a way that would justify such
disregard for them. The Windsor dissenters considered the


1171 (9th Cir. 2013); United States v. Green, 722 F.3d 1146, 1149–51 (9th
Cir. 2013). They often do so even when the panel believes that binding
precedent is clearly wrong. See, e.g., United States v. Chandler, 743 F.3d
648, 661–62 (9th Cir. 2014) (Bybee, J., concurring); Al-Ramahi v. Holder,
725 F.3d 1133, 1138 n.2 (9th Cir. 2013); United States v. Hernandez-
Estrada, 704 F.3d 1015, 1025–26 (9th Cir. 2012) (Kozinski, C.J.,
concurring), rev’d en banc, 2014 WL 1687855, — F.3d — (9th Cir.
2014). What is more, sitting en banc, we have chastised a three-judge
panel for presuming to overrule binding circuit precedent when it is not
“clearly irreconcilable” with intervening higher authority. See United
States v. Contreras, 593 F.3d 1135, 1136 (9th Cir. 2010) (en banc). As
explained below, Windsor simply is not “clearly irreconcilable” with
Philips and High Tech Gays. As a result, the panel in this case had only
two legitimate options—to defer to binding circuit precedent or to issue
a sua sponte en banc call. It did neither.
    SMITHKLINE BEECHAM V. ABBOTT LABORATORIES                9

opinion to be “rootless and shifting,” noting crucially that it
“does not even mention what had been the central question in
this litigation: whether, under the Equal Protection Clause,
laws restricting marriage to a man and a woman are reviewed
for more than mere rationality,” 133 S.Ct. at 2705–06 (Scalia,
J., dissenting). Even the majority in Windsor declined to
adopt the reasoning of the Second Circuit, which had
expressly applied heightened scrutiny to the equal protection
claim in the case. See Windsor v. United States, 699 F.3d
169, 181 (2d Cir. 2012).

     The essential aspects of Windsor in fact cut against our
own panel’s view. After the Court declined there to identify
the applicable standard of review, it significantly limited its
holding in a way the panel simply ignored. The Court
explained that “[t]he class to which DOMA directs its
restrictions and restraints are those persons who are joined in
same-sex marriages made lawful by the State,” and that
DOMA’s “purpose and effect [is] to disparage and to injure
those whom the State, by its marriage laws, sought to protect
in personhood and dignity.” 133 S.Ct. at 2695–96. The
Windsor Court expressly identified the classification relevant
to its inquiry, but the panel’s opinion simply invented a new
classification, concluding that heightened scrutiny applies any
time “state action discriminates on the basis of sexual
orientation.” 740 F.3d at 483. And the panel prefers entirely
to disregard Windsor’s closing instruction: “This opinion and
its holding are confined to those lawful marriages” that States
like New York had chosen to recognize. 133 S.Ct. at
2695–96. As the Chief Justice observed, “[Windsor’s]
analysis leads no further.” Id. (Roberts, C.J., dissenting). An
opinion so limited compels “not only our usual obedience, but
also our self-conscious restraint.” Witt, 548 F.3d at 1275
10 SMITHKLINE BEECHAM V. ABBOTT LABORATORIES

(O’Scannlain, J., dissenting from denial of rehearing en
banc).

                                    B

    The panel grasps at Witt—a substantive due process
case—as the best straw possible to justify its departure from
our equal protection precedents.6 But even the analysis
expressly prescribed by Witt cannot support today’s
conclusion that heightened scrutiny applies to distinctions
based on sexual orientation in the equal protection context.
Witt divined from three entrails that Lawrence prescribed
heightened scrutiny in the substantive due process context:
first, Lawrence declined to examine hypothetical
justifications for the law; second, Lawrence required a
“legitimate” justification for the law; and third, Lawrence
cited substantive due process cases applying heightened
scrutiny. 527 F.3d at 817. But Windsor reflects none of the
viscera Witt considered to be indicia of heightened scrutiny.

    Indeed, the Witt factors reveal only rational basis review
at work in Windsor. To employ rational basis review in the
equal protection context did not require Windsor to consider
hypothetical justifications for Section 3 of DOMA. See
Romer v. Evans, 517 U.S. 620, 635 (1996). In declaring that
Section to be motivated by no “legitimate” purpose, Windsor
only applies rational basis review in the same way that Romer

  6
     Six of us argued that Witt was wrong when it was decided. See
548 F.3d 1264, 1265 (9th Cir. 2008) (O’Scannlain, J., joined by Bea, M.
Smith, and N.R. Smith, JJ., dissenting from denial of rehearing en banc);
id. at 1276 (Kleinfeld, J. joined by Bea, J., dissenting from denial of
rehearing en banc); id. at 1280 (Kozinski, C.J., joined by Bea and M.
Smith, JJ., dissenting from denial of rehearing en banc). Nevertheless, it
is the law of our Circuit and should be followed according to its terms.
      SMITHKLINE BEECHAM V. ABBOTT LABORATORIES 11

reviewed Colorado’s Amendment 2 for rational basis. See
id. And, unlike Lawrence, Windsor relied on rational basis
cases: Romer, a rational basis case by the panel’s own
admission, 740 F.3d at 483; Moreno, a rational basis case
according to Lawrence, see 539 U.S. at 580; and Lawrence
itself, which the panel admits “declined to address equal
protection,” 740 F.3d at 480.

    In a final flourish of legerdemain, the panel pleads that
Windsor cites Lawrence and therefore must be applying
something other than rational basis review because Lawrence
“is a heightened scrutiny case.” Id. at 483. But Lawrence is
not a “heightened scrutiny” case, but rather a substantive due
process case, and for that reason cannot govern the equal
protection analysis here. Even Witt acknowledged as much,
see 527 F.3d at 821—but this panel is not so modest. Its
opinion offers no justification for such an extraordinarily
expansive reading of Windsor in light of these contrary
indications. Indeed, there can be none.

                                  IV

    Recall that this appeal started out as a Batson case about
striking one juror allegedly based on perceived sexual
orientation. Without even acknowledging the consequences
of its decision, the panel has 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 distinctions based on sexual orientation, without
waiting for appropriate guidance from the Supreme Court.7


  7
    Even when the Supreme Court has extended Batson, it has done so
only when the classification at issue had already been subjected to
heightened scrutiny. See J.E.B. v. Alabama, 511 U.S. 127, 135–36 (1994).
12 SMITHKLINE BEECHAM V. ABBOTT LABORATORIES

And in doing so, it plainly misread Windsor, abandoned our
own equal protection precedents, and disregarded our
procedures for departing from settled constitutional doctrine.

    I respectfully dissent from our regrettable failure to rehear
this case en banc. While this case may end here—neither
party is likely to seek certiorari given that neither party urged
en banc reconsideration of the applicable standard of
review—reliance on the panel’s analysis as an example of
anything more than an exercise of raw judicial will would be
most unwise.




It has not extended the Batson analysis, as today’s decision does, to
classifications never previously regarded with constitutional suspicion.
