Bench Memos

NRO’s home for judicial news and analysis.

Ninth Circuit’s Denial of Rehearing En Banc in Anti-Prop 8 Case


In an unsurprising development (unsurprising, especially, given how dysfunctional and left-tilting the Ninth Circuit is), the Ninth Circuit today denied Prop 8 proponents’ petition for rehearing en banc of Judge Reinhardt’s anti-Prop 8 ruling.

In a very brief dissent, Judge O’Scannlain, joined by Judges Bybee and Bea, decries Reinhardt’s “gross misapplication of Romer v. Evans” in “declar[ing] 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.” Reinhardt’s reading of Romer, O’Scannlain correctly observes, “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.” O’Scannlain criticizes the court for having “so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.” And he incorporates by reference “many of the reasons” discussed by Judge Randy Smith in his panel dissent. (The panel order separately states that Judge Smith would also grant the en banc petition. Whether or not there were other votes for en banc rehearing is not a matter of public record.)

Reinhardt, in a one-paragraph concurrence, repeats his canard that his purportedly “narrow” ruling does not amount to invention of a broader constitutional right to same-sex marriage.

The Ninth Circuit has stayed its mandate pending filing of a certiorari petition and final disposition of this matter by the Supreme Court.

The Supreme Court should definitely grant review of Reinhardt’s rogue ruling. This case is on the same time track as the First Circuit’s wrongful invalidation of the Defense of Marriage Act and should be considered along with it in the next Supreme Court term (ending June 2013).


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