Smithkline Beecham Corp. v. Abbott Laboratories

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 non-reeused active judges. Fed. R.App. P. 35. The sua sponte en banc call is rejected.

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

This ease 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 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). The opinion’s unprecedented application of heightened scrutiny to a peremptory strike of a juror who was *991 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.

Indeed, today’s opinion is the only appellate decision since United States v. Windsor, — U.S. -, 133 S.Ct. 2675 , 186 L.Ed.2d 808 (2013), to hold that lower…