Box Turtle Bulletin

Ninth Circuit Rejects En Banc Hearing Request for Prop 8

The Ninth Circuit Court of Appeals denied (PDF:94KB/ 7 pages) the request by the Alliance Defense Fund, Proposition 8’s defender of record, for an en banc hearing by an eleven-judge panel of the Ninth Circuit:

A majority of the panel has voted to deny the petition for rehearing en banc. Judge N.R. Smith would grant the petition.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED.

The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.

This means that the Alliance Defense Fund has ninety days to petition the Supreme Court to consider the case. The Supreme Court typically goes into recess in June, which means that it may not decide to grant cert until sometime in October. Four Supreme Court justices must vote to hear the case in order for the Court to grant cert.

Three of the dissenting Ninth Circuit judges issued a stinging dissent from the order refusing an en banc hearing. Their dissent will likely be quoted extensively by NOM and the Family “Research” Council:

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

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 same-sex 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.”

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.

That dissent earned this reply from the two judges of the three judge panel which upheld, albeit on much narrow grounds, a lower court’s ruling that Prop 8 was unconstitutional:

REINHARDT and HAWKINS, Circuit Judges, concurring in the denial of rehearing en banc:

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 time.