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Further Prop. 8 review denied by court of appeals (FINAL UPDATE)

FINAL UPDATE 2:05 p.m.  (A response to a reader question was added at 2:25 p.m.)


The Ninth Circuit Court refused on Tuesday to reconsider the decision in February striking down California’s Proposition 8, the voter-approved ban on same-sex marriages in the state.  The Court, however, put the case on hold for at least 90 days to allow the proponents of the ballot measure to seek to appeal to the Supreme Court.  The denial came over the dissents of three judges, who called this a “momentous case” and argued that the divided decision of a three-judge panel had resulted from a “gross misapplication” of a key Supreme Court ruling on gay rights.  One other judge dissented, but did not join the three in their objection.  The combination of orders and separate opinions can be read here.

The ruling will set the stage for a major test in the Supreme Court, although the panel ruling is a narrow one that explicitly avoided deciding whether gays and lesbians have a constitutional right to get married.  The two judges who were in the majority in ruling against Proposition 8 briefly defended the narrowness of their decision in a concurring opinion Tuesday.

After the panel decision, the supporters of the measure had asked the full Circuit Court to reconsider the case en banc.  At the request of an unidentified judge, a vote was taken among the 25 judges eligible to vote on the question, and a majority of 13 would have been required to grant such review.  The final vote thus appeared to be 21-4, because the dissenting member of the panel favored en banc review, but did not join the dissenting opinion by three other judges.

Because the Circuit Court’s decision is now on hold, not only for 90 days, but also — if the Justices grant review — for all of the time that the Supreme Court takes to decide it, that could make it unnecessary for the backers of Proposition 8 to file a quick plea for help from the Supreme Court.   The case almost certainly could not be heard, in any event, until the new Term, starting October 1, since the Justices are likely to go into summer recess later this month.  If review were granted, the case probably would not even be heard until weeks after the November elections this year.

The Ninth Circuit panel, and a three-judge panel of the First Circuit, have now issued gay marriage decisions that avoid the issue of whether the Constitution assures gays and lesbians of any right to civil marriage.  In both of the panel decisions, the two Circuit Courts relied upon findings that excluding homosexuals from equal access to marriage or to the benefits of marriage was based upon discrimination against them because of their sexual identities.   That approach is keyed to a series of modern Supreme Court rulings that have held that hostility to homosexuality, or moral objection to it, is not a valid basis for singling out gays and lesbians for less favorable treatment in public policy.  The Supreme Court has never recognized a right to same-sex marriage.

The First Circuit Court, unlike the Ninth Circuit, did not strike down a state law, but rather ruled unconstitutional a part of a 1996 federal law, the Defense of Marriage Act, that provided federal benefits for marriage only for opposite-sex couples.

Tuesday’s developments in the Ninth Circuit Court illustrated just how contentious the issue of same-sex marriage remains in American society.  The three dissenting judges who joined in a separate opinion accused the majority of the court of having “silenced any…respectful conversations” about the issue; they noted that President Obama, in a recent statement saying he supports same-sex marriage, had also urged the nation to talk about the issue in a “respectful manner.”

Circuit Judge Diarmuid O’Scannlain wrote the dissenting opinion, joined by Circuit Judges Jay S. Bybee and Carlos Bea.  Their opinion said that the majority has 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 millenia….Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer [v. Evans] 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.”

Circuit Judge N. Randy Smith, who had dissented from the panel ruling, said Tuesday he would have granted en banc review, but he wrote no opinion.

Circuit Judge Stephen Reinhardt, the author of the panel decision, wrote a short concurring opinion joined by his colleague on the panel, Circuit Judge Michael Daly Hawkins.  They said they were puzzled by Judge O’Scannlain’s “unusual reliance” on comments by President Obama, because, they said, the President had made no mention of “the narrow issue that we decided.”

They added: “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.”

Because the stay order was issued, no new same-sex marriages may be performed in California under the panel decision.   Some 18,000 couples were married in California, during the period between the time the state Supreme Court had ruled that such a right existed under the state constitution and the vote by California voters in November 2008 to take away that right for gays and lesbians.

(NOTE: One of the blog’s favorite readers has asked whether the denial of further review of the Ninth Circuit panel decision means that U.S. District Judge Vaughn R. Walker’s far more sweeping decision against Proposition 8 now stands.  No.  The only part of the Walker decision that survived the Circuit Court rule was its bottom line: Proposition 8 is unconstitutional.  When a Circuit Court reaches the same result but, as here, does so with a very much narrower rationale, the District Court’s reasoning more or less vanishes from the scene.  The District Court is subordinate to the Circuit Court, so, between the two, what the Circuit Court says, goes.  The Walker opinion is a fascinating historic exposition of equal protection and due process concepts in the gay marriage context, but it is, in practical terms, only a fascinating relic.)


Recommended Citation: Lyle Denniston, Further Prop. 8 review denied by court of appeals (FINAL UPDATE), SCOTUSblog (Jun. 5, 2012, 12:58 PM),