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Topics In the News
Ninth Circuit Refuses En Banc Hearing on Prop 8
Posted by: Claude J. Summers on 06/05/12
Last updated on: 06/05/12
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On June 5, 2012, the United States Court of Appeals for the Ninth Circuit announced that it had denied the proponents' request for an en banc review of the decision holding California's Proposition 8, which bans same-sex marriage, unconstitutional.

In a terse note posted on its website, the Court announced that notwithstanding the vote of dissenting Judge N. R. Smith, the request for an en banc reconsideration of the decision "failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration." The petition for rehearing en banc is thus DENIED.

The Court, however, added: "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."

Thus, the 2-1 decision authored by Judge Stephen Reinhardt that declared Proposition 8 unconstitutional on narrow grounds remains in effect, though it is stayed pending a decision by the Supreme Court of the United States as to whether to review it. The two-judge majority held that "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for laws of this sort."

Three conservative judges (O'Scannlain, Bybee, and Bea) dissented from the order, alleging that the two-judge majority had grossly misapplied the landmark Supreme Court decision Romer v. Evans to declare "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 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."

In response, Judges Reinhardt and Hawkins wrote, "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."

The testy dissent by O'Scannlain, Bybee, and Bea may be an attempt to persuade the conservative members of the Supreme Court to grant review of the case.

The proponents have 90 days to request a hearing by the Supreme Court. If the Supreme Court refuses the request, then the Ninth Circuit's decision goes into effect and same-sex marriages may resume in California in September 2012 or earlier.

If, however, the Supreme Court grants the writ of certiorari and agrees to review the case, then the stay remains in place until there is a Supreme Court decision, probably handed down during in the spring or summer of 2013.

The news was greeted with relief by supporters of same-sex marriage. Chad Griffin, co-founder of the American Foundation for Equal Rights, issued a statement describing the order as "yet another federal court victory for loving, committed gay and lesbian couples in California and around the nation."

In the video below, Matt Baume of AFER reacts to the ruling.

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