The full Ninth Circuit has refused to hear the Prop 8 case, which a three-judge panel ruled unconstitutional. Judge O’Scannlain gave an unusually blunt and scathing dissent.
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.
Judge Reinhardt and Hawkins continue to pretend theirs was just a narrow decision having nothing to do with making up a fundamental right to gay marriage:
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 w ith 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.
Now, it’s up to the Supremes.