SAN FRANCISCO (CN) – The 9th Circuit refused to hold another hearing on California’s gay marriage ban, which the court found unconstitutional in February 2012.
Judge N. Randy Smith had called for a vote to send the case to an 11-judge panel, but a majority of judges shot the idea down Tuesday. The vote against rehearing inspired a strong dissent.
“Today our court has silenced any such respectful conversation,” Judge Diarmuid O’Scannlain, wrote, joined by Judge Jay Bybee and Judge Carlos Bea. “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. Even worse, we have overruled the will of seven million California Proposition 8 voters.”
O’Scannlain added that the court “should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.”
“While President Obama recently came out in support of gay marriage, the majority must have missed his subsequent comment that the issue had traditionally been one for the states,” the dissent states.
“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,” O’Scannlain wrote. “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.” (Brackets in original.)
Two judges in the majority said they were “puzzled” at the emphasis on Obama’s remarks, “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,” Judge Stephen Reinhardt wrote, joined by Judge Michael Hawkins. “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.”
O’Scannlain’s opinion balked at the alleged misapplication of Romer v. Evans, the landmark gay-rights ruling decided by the Supreme Court in 1996.
“Based on a two-judge majority’s gross misapplication of Romer v. Evans, 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,” O’Scannlain wrote. “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.”
California voters passed Proposition 8 in November 2008, amending the state Constitution to define marriage as between a man and a woman. After two same-sex couples challenged the law, the now retired Chief U.S. District Judge Vaughn Walker struck it down as unconstitutional in August 2010.
The issue went on to the 9th Circuit, which upheld Walker’s ruling on narrow grounds, finding Prop. 8 “stripped same-sex couples of the ability they previously possessed to obtain from the state … the right to obtain and use the designation ‘marriage’ to describe their relationships. Nothing more, nothing less.”
The mandate denying a rehearing of the case by the full 9th Circuit will be stayed for 90 days, giving the law’s supporters time to decide whether to appeal to the Supreme Court.