Ninth Circuit Rejects En Banc Hearing Request for Prop 8

Jim Burroway

June 5th, 2012

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.


June 5th, 2012

O’Scannlain is a gigantic moron and clearly an ignorant, backwards religious fundamentalist. His dissent in the original ruling was already an embarrassment. This screed is even more embarrassing.


June 5th, 2012

Jay Bybee was the author of GWB’s “Torture Memo”, so we are talking about a real champion of human rights here. I don’t think Bybee can leave the United States for fear of being arrested for war crimes in other countries.


June 5th, 2012



I would add that the same kind of people who think that gay judges cannot be impartial and should recuse themselves from LGBT related cases are the same ones that cannot help but take their bibles into every courtroom they sit in.


June 5th, 2012

I’m getting sick and tired people invoking the “seven million California voters” whose will was supposedly overruled by the court’s decision.

You can debate whether a majority has the right to vote on the rights of a minority, of course, but throwing out a huge number for shock value (SEVEN MILLION!) is such a cheap shot. What about the SIX AND A HALF MILLION voters whose will would be overruled by reversing the decision? Those people don’t count somehow? Or is SEVEN MILLION the arbitrary number at which shock and dismay is allowed to be registered?

Anyway … glad to hear that’s one step this case won’t be dragged out any further for. Woohoo! Now how about lifting the stay? :)

Timothy Kincaid

June 5th, 2012


A decision to overturn a vote impacts ALL voters, both those who vote in favor or who vote against. It should ALWAYS be a measure of last resort.

In this case, it is decidedly a measure of last resort.

I could respect them if they said, “This decision does not respect the 13.4 million California voters who expressed their will and 52% of which affirmed the amendment.” I would disagree, but respect their thinking.

But you are right. Any time anyone goes for the sensationalistic “seven million Californians”, you know that they are not respecting the voters but only wanting to get their way. As a California voter, I resent that.


June 5th, 2012

As everyone knew this was going to the Supreme Court. I am sure that the court accept the case. And, it will be more of a campaign issue than even I thought.


June 6th, 2012

Email to CNN:

I am concerned that your repeated airing this morning of the Prop 8 trial rezults include one significant clip of a Drag Queen/Painted-Faced Nun, RATHER THAN Lawyers, Judges, Photos of Litigants, etc.

Who made this decision?

Is this really what CNN sees as representative to this important legal case?

This is completely derrogatory and non-representative of the actual events. Please do not ridicule that which should be serious reporting?

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