Tag Archives: Ninth Circuit

Court blocks use of insecticide believed to contribute to bees’ disappearance

A federal appeals court has blocked the use of a pesticide over concerns about its effect on honey bees, which have mysteriously disappeared across the country in recent years.

In her opinion, Judge Mary M. Schroeder, one of three judges who sit on the U.S. Court of Appeals for the Ninth Circuit panel, wrote that the Environmental Protection Agency had initially decided to conditionally approve the chemical — sulfoxaflor  — but ordered more studies to better understand the effects of the systemic insecticide on bees.

“A few months later, however, the EPA unconditionally registered the insecticides with certain mitigation measures and a lowering of the maximum application rate,” Schroeder wrote. “It did so without obtaining any further studies.”

“Given the precariousness of bee populations, leaving the EPA’s registration of sulfoxaflor in place risks more potential environmental harm than vacating it,” she added.

“Because the EPA’s decision to unconditionally register was based on flawed and limited data, we conclude that the unconditional approval was not supported by substantial evidence,” the court wrote.

The product, sold in the U.S. as Transform or Closer, must be pulled from store shelves by Oct. 18.

The judgment is a huge victory for environmentalists.

Sulfoxaflor belongs to a group of insecticides known as neonicotinoids (NEE-OH-NIC-DUH-NIDES), according to the Ninth Circuit ruling. Neonicotinoids are suspected of being among several factors that have contributed to the collapse of honey bee colonies throughout the U.S.

Bees, especially honeybees, are needed to pollinate crops, and they are considered essential to the U.S. food supply.

But a disorder has caused as much as one-third of the nation’s bees to disappear each winter since 2006. A 2013 report issued by the EPA and U.S. Department of Agriculture cited a parasitic mite, multiple viruses, bacteria, poor nutrition, genetics, habitat loss and pesticides as factors for the bees’ disappearance.

“We’re certainly extremely happy,” said Greg Loarie, an attorney with the group Earthjustice, which challenged the EPA’s approval of sulfoxaflor on behalf of groups in the beekeeping industry. “It means that sulfoxaflor comes off the market while the EPA does the work it should have done a long time ago.”

Loarie said the pesticide was used on cotton in southern states, but it had only been approved on an emergency basis for one crop in California.

Supreme Court denies stay, same-sex couples to marry in Idaho

The U.S. Supreme Court on Oct. 10 denied a stay of the Ninth Circuit decision striking down Idaho’s marriage equality ban, allowing marriage equality to take effect in that state.

Idaho still has the option to petition the U.S. Supreme Court for certiorari. However, the state cannot refuse to grant same-sex couples marriage licenses pending a decision by the Supreme Court.

“Today’s Supreme Court order is yet another critical step in the path towards full nationwide marriage equality,” said Human Rights Campaign legal director Sarah Warbelow. “Same-sex couples cannot wait while the judicial process plays out, and the Supreme Court clearly agrees.”

Earlier this week, a three-judge panel for the Ninth Circuit Court of Appeals ruled that state bans on marriage rights for same-sex couples are unconstitutional. The court found that Idaho and Nevada’s marriage bans violate the 14th Amendment to the U.S. Constitution on the basis of equal protection.

Nevada declined to appeal the Ninth Circuit decision while Idaho requested an emergency stay and signaled their intent to challenge the decision. Justice Anthony Kennedy issued a temporary stay on Oct. 8.

Also this week, the nine justices of the Supreme Court announced they had declined to hear any of the cases pending before them challenging state bans on marriage for same-sex couples. This allowed the circuit court decisions striking down the bans to stand in five states, including Wisconsin.

Gallup puts support for marriage equality at 55 percent, with other polls showing support at even higher margins.

And support for same-sex marriage rights continues to grow in virtually every demographic group.

Court rules that jurors can’t be removed based on sexual orientation, gender identity

The U.S. Ninth Circuit Court of Appeals ruled today (Jan. 21) that people cannot be removed from a jury due solely to their sexual orientation or gender identity.

The National LGBT Bar Association said in a statement that the ruling ensures that the scope of “Batson challenges” will now extend to LGBT people. In Batson v. Kentucky, the U.S. Supreme Court ruled in 1986 that peremptory challenges could not be used to remove a juror based solely on race.

“Excluding jurors based on their sexual orientation and gender identity denies countless individuals a jury of their peers,” said D’Arcy Kemnitz, executive director of the National LGBT Bar Association. “The LGBT Bar commends the Ninth Circuit for its commitment to equality and for ensuring that jurors will no longer be discriminated against while performing a civic duty.”

The decision out of the Ninth Circuit in San Francisco stems from a 2011 case between GlaxoSmithKline and Abbott Laboratories. GlaxoSmithKline argued that Abbott had unfairly increased the price of Norvir, a drug that combats HIV. GSK claimed that by increasing the price of Norvir, it would boost sales of Abbott’s other HIV drug, Kaletra, and would harm competitors whose drugs must be taken with Norvir.

The court ultimately ruled in favor of Abbott, but GSK appealed the ruling on the grounds that Abbott had unfairly removed a juror based on sexual orientation, arguing that the removal should have been disallowed due to Batson.

The case comes shortly after the introduction of the Jury Access for Capable Citizens and Equality in Service Selection Act, a bipartisan bill that would amend the federal statute to include sexual orientation and gender identity, protecting those groups from being removed from a jury without cause.

The bill was introduced by U.S. Sen. Jeanne Shaheen, D-NH, and co-sponsored by Sens. Sheldon Whitehouse, D-RI, and Susan Collins, R-Maine. The LGBT Bar worked closely with Shaheen’s office in drafting the bill and identified many examples of discrimination against LGBT jurors.

A companion bill in the House, the Juror Non-Discrimination Act, was introduced by Rep. Susan Davis, D-Calif.

“Jury service is a fundamental civic duty,” Kemnitz said. “LGBT people are proud to serve the courts when summoned. While some might jest at jury duty, in fact the courts demand through a subpoena that a person suspend their usual daily activity to be part of the rule of law.”

Editor’s note: The National LGBT Bar Foundation has a board member who works for GlaxoSmithKline, but he in no way affected our handling or reporting of this issue.




Supreme Court rejects Arizona partnership case

Gay marriage proponents marked another victory on June 27 after the U.S. Supreme Court rejected appeals from Arizona and Nevada involving the rights of same-sex couples.

The justices let stand an appeals court ruling striking down an Arizona law that made state employees in same-sex relationships ineligible for domestic partner benefits. The Nevada case was a challenge to the state’s ban on same-sex marriage. The court did not elaborate on the reason for not taking up the cases.

The court’s decisions on the two cases are not as sweeping as rulings on June 26 that made it a landmark week for gay rights. The Supreme Court issued decisions that struck down a provision that denies federal benefits to married gay couples and also allowed for same-sex couples to marry in California.

In Arizona, the decision means dozens of same-sex state workers will be allowed to keep employee benefits.

For the Nevada case, the gay marriage ban will remain intact, and the 9th U.S. Circuit Court of Appeals in San Francisco will decide the next step.

Republican Gov. Jan Brewer denied that Arizona had targeted gay couples and slammed the court for not recognizing the state’s right to balance its budget by limiting employee benefits.

“This case has never been about domestic partners, same-sex or otherwise,” Brewer said in a statement. “It is always been about the authority of elected state officials to make decisions with which we have been entrusted by the voters.”

Arizona’s constitution bans gay marriage and a 2009 law signed by Brewer repealed domestic partner benefits for state workers. Brewer said the state was in a fiscal crisis and couldn’t afford to extend health care benefits to employees’ dependents if they weren’t married. She said the policy was legal because it applied to all employees, regardless of sexual orientation.

Gay marriage proponents counter that the policy was discriminatory because heterosexual couples may marry to obtain benefits, while gay couples can’t under state law.

“The state is excluding only one group of employees from family coverage and that is lesbian and gay employees,” said Tara Borelli, a lawyer for Lambda Legal in Los Angeles.

The conservative Center for Arizona Policy, which opposes gay marriage, had supported the state’s position in court, and has vowed to fight any efforts to overturn the state’s ban on gay marriage.

“The Legislature and the governor should have the authority to determine benefits for state employees,” President Cathi Herrod said after the ruling.

The legal battle could soon be resolved by voters. Gay marriage proponents began gathering signatures Thursday to change the Arizona constitution and legalize gay marriage. The Equal Marriage Arizona campaign hopes to collect roughly 400,000 signatures to get its constitutional amendment on the ballot in 2014.

The Nevada case was originally filed on behalf of eight same-sex couples, and it argued that a 2002 state constitutional amendment prohibiting gay marriage violated the equal protection clause of the U.S. Constitution by denying same-sex couples the same rights as married couples.

A federal judge in Reno ruled last year that the gay marriage ban was not a constitutional violation and it was upheld. The plaintiffs then appealed that decision to the 9th U.S. Circuit Court of Appeals while the anti-gay marriage group requested the Supreme Court hear the appeal instead of the San Francisco court.

Borelli said Nevada law is questionable because the state grants domestic partners the same legal privileges afforded to married couples, while denying gays the right to marry. She said the state must rationalize the exclusion.

The Nevada Legislature recently approved a measure that would legalize gay marriage but changing the state constitution is a lengthy process. Lawmakers must pass the same resolution in 2015 before it goes to voters for final approval on the 2016 ballot. If it clears both hurdles, it would become law. If it fails at any stage, the five-year process must start over.

“We should just have a state law and be done with it,” said Sen. Kelvin Atkinson, D-North Las Vegas. “In the constitution we shouldn’t be defining marriage, that’s not what the constitution is for.”

Not legalizing same-sex marriage will have consequences for Nevada over time, said Atkinson, who made national headlines earlier this year when he publicly announced that he was gay during the state Senate’s debate on marriage equality.

“We are a tourism state and we do rely on folks visiting our state, so some may decide they’re not going to come here because they don’t have the same rights here,” Atkinson said.

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House Democrats oppose anti-gay DOMA in court brief

House Democratic Leader Nancy Pelosi has led a coalition of at least 130 congressional members in filing a friend-of-the-court brief opposing the anti-gay Defense of Marriage Act.

The filing is in Golinski v. Office of Personnel Management, a case before the Ninth Circuit Court of Appeals that the Justice Department wants fast-tracked to the U.S. Supreme Court.

Oral arguments currently are set for Sept. 10 and likely will take place because the Supreme Court is on summer break and won’t rule on the Justice Department request before the fall.

The department has declined to defend DOMA, the 1996 law prohibiting the federal government from recognizing gay marriages. So the Republican leadership in the House of Representatives has intervened and hired attorneys to defend the law.

House Democrats, meanwhile, have signed on to the amicus brief opposing DOMA.

The brief, according to a statement from Pelosi’s office, “makes it clear that the House is not united on DOMA’s validity, that the BLAG (Bipartisan Legal Advisory Group) lawyers do not speak for the entire institution and that there is no legitimate federal interest in denying married same-sex couples the legal security, rights and responsibilities that federal law provides to couples who are married under state law.”

The signers include:

Nancy Pelosi


Steny Hoyer


James E. Clyburn

Jerrold Nadler

John Conyers Jr.

Barney Frank

Tammy Baldwin

Jared Polis

David N. Cicilline


Gary L. Ackerman

Robert E. Andrews

Karen Bass

Xavier Becerra

Shelley Berkley

Howard L. Berman

Timothy H. Bishop

Earl Blumenauer

Suzanne Bonamici

Robert A. Brady

Bruce L. Braley


Lois Capps

Michael E. Capuano

André Carson

Judy Chu

Hansen Clarke

Yvette D. Clarke

Wm. Lacy Clay


Emanuel Cleaver

Steve Cohen

Gerald E. Connolly

Joe Courtney


Joseph Crowley

Danny K. Davis

Susan A. Davis

Diana DeGette

Rosa L. DeLauro

Theodore E. Deutch

Lloyd Doggett

Michael F. Doyle

Donna F. Edwards

Keith Ellison

Eliot L. Engel

Anna G. Eshoo

Sam Farr

Chaka Fattah

Bob Filner

Marcia L. Fudge

John Garamendi

Charles A. Gonzalez

Raúl M. Grijalva

Luis V. Gutierrez

Janice Hahn

Colleen W. Hanabusa

Alcee L. Hastings

Martin Heinrich

Brian Higgins

James A. Himes

Maurice D. Hinchey

Mazie K. Hirono

Kathy Hochul

Rush D. Holt

Michael M. Honda

Steve Israel

Jesse L. Jackson Jr.


Sheila Jackson Lee

Eddie Bernice Johnson

Henry C. “Hank” Johnson Jr.

William R. Keating

Dennis J. Kucinich

John B. Larson

Barbara Lee

Sander M. Levin

John Lewis

Zoe Lofgren

Nita M. Lowey

Carolyn B. Maloney

Edward J. Markey

Doris O. Matsui

Carolyn McCarthy

Betty McCollum

Jim McDermott

James P. McGovern

Jerry McNerney

Gregory W. Meeks

Brad Miller

George Miller

Gwen Moore

James P. Moran

Christopher S. Murphy

Grace F. Napolitano

Richard E. Neal

Eleanor Holmes Norton

John W. Olver

William L. Owens

Frank Pallone Jr.

Ed Pastor


Gary C. Peters

Chellie Pingree

David E. Price

Mike Quigley

Charles B. Rangel

Laura Richardson

Steven R. Rothman

Lucille Roybal-Allard

Bobby L. Rush

Tim Ryan

Linda T. Sánchez

Loretta Sanchez

John P. Sarbanes

Janice D. Schakowsky

Adam B. Schiff

Robert C. “Bobby” Scott

José E. Serrano

Brad Sherman

Louise McIntosh Slaughter

Adam Smith

Jackie Speier

Fortney Pete Stark

Mike Thompson

John F. Tierney

Paul Tonko

Edolphus Towns

Niki Tsongas

Chris Van Hollen

Nydia M. Velázquez

Timothy J. Walz

Debbie Wasserman Schultz

Maxine Waters

Henry A. Waxman

Peter Welch

Lynn C. Woolsey

John A. Yarmuth

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U.S. Appeals: Prop 8 trial tapes to remain sealed

The U.S. Court of Appeals for the Ninth Circuit on Feb. 2 decided not to unseal the video record of the trial in Perry v. Schwarzenegger (now Perry v. Brown).

The Perry case is a federal constitutional challenge to Proposition 8, the voter-approved amendment that banned same-sex marriage in California. In a landmark August 2010 ruling, a U.S. District Court ruled that Prop 8 is unconstitutional.

The ruling is on appeal.

Meanwhile, the Ninth Circuit has issued a ruling on the question of whether video from the trial should be unsealed.

The American Foundation for Equal Rights, filers of the Perry case, argued that the tapes should be public under First Amendment and common law.

Proponents of Prop 8, the defendants in the case, argued for secrecy, claiming that public viewing might expose their witnesses to harassment.

Last September, U.S. District Chief Judge James Ware agreed with AFER’s argument, ruling for the release of the tapes and emphasizing, “Transparency is pivotal to public perception of the judiciary’s legitimacy and independence.”  

“We think Chief Judge Ware had it right, but we are looking at the big picture and hoping for a ruling soon on the merits affirming the district court’s judgment that Proposition 8 is unconstitutional,” said AFER attorney Theodore J. Boutrous Jr.

A coalition of media companies – Los Angeles Times, CNN, The New York Times, FOX News, NBC News, Dow Jones & Co. and The Associated Press – joined the call for unsealing the tapes.

A number of civil rights groups also sought a release.

“In our minds, it never made sense that transcripts from the hearing could be easily accessed by anyone but not the videotapes,” said Rick Jacobs of the Courage Campaign. “That just proves that our cowardly opponents knew they did a poor job defending their bigotry and homophobia in court. We sincerely hope this decision does not herald more bad news regarding the unconstitutionality of Prop 8. Lives are depending on it.”