9th Circuit Denies Rehearing En Banc on Prop 8 Cases, Stays Order Pending SCOTUS Resolution

June 5th, 2012

The order is here.

Judge O’Scannlain’s dissental, joined by Judge Bea and Bybee, is interesting in that it cites President Obama’s statement that the issue of SSM should be reserved to the states, even though he personally supports it:

A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports samesex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”1

Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia, Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012). Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court. For many of the same reasons discussed in Judge N.R. Smith’s excellent dissenting opinion in this momentous case, I respectfully dissent from the failure to grant the petition for rehearing en banc.

Reinhardt, joined by Hawkins, wrote a concurral that expressed “puzzle[ment]” at O’Scannlain’s dissental:

We are puzzled by our dissenting colleagues’ unusual reliance on the
President’s views regarding the Constitution, especially as the President did not
discuss the narrow issue that we decided in our opinion. We held only that under the
particular circumstances relating to California’s Proposition 8, that measure was
invalid. In line with the rules governing judicial resolution of constitutional issues, we
did not resolve the fundamental question that both sides asked us to: whether the
Constitution prohibits the states from banning same-sex marriage. That question may
be decided in the near future, but if so, it should be in some other case, at some other

These are not the droids you are looking for. Reinhardt’s opinion was too clever by half. Sure it rested on narrow grounds. But by extending that reasoning, I doubt many other laws banning SSM could survive.