Late last Friday, the Ninth Circuit issued an order denying the petitions for rehearing en banc in the Nevada and Idaho marriage cases. The order includes a strong dissent from Judge Diarmuid O’Scannlain, joined by Judge Johnnie B. Rawlinson and Judge Carlos Bea. (It’s possible that other judges voted for rehearing but chose not to register their votes publicly, but, given the composition of the Ninth Circuit, I doubt that the vote margin was close.) Rawlinson is a Clinton appointee. Given the dissent’s discussion of Loving v. Virginia, I’ll also note that she is African-American.
Here’s a brief summary and outline of O’Scannlain’s dissent:
1. The Ninth Circuit panel opinion “overlooks binding Supreme Court precedent”—the Court’s dismissal “for want of a substantial federal question” of the same constitutional claims in Baker v. Nelson (1972). The Court decided Baker v. Nelson five years after it decided Loving, so plaintiffs’ claim that Loving controls makes no sense. Lower courts are obligated to follow Supreme Court precedent that directly applies even if that precedent appears to rest on reasons rejected in some other line of decisions. “Windsor, Lawrence, and Romer simply do not limit the states’ authority to define marriage and certainly do not contradict Baker’s conclusion that the Constitution does not require states to recognize same-sex marriage.” (Slip op. at 3-15.)
2. The Ninth Circuit panel “fails to respect bedrock principles of democratic self-governance” and “acts in a way Justice Kennedy has deemed ‘inconsistent with the underlying premises of a responsible, functioning democracy.’” “Nothing about the issue of same-sex marriage exempts it from the general principle that it is the right of the people to decide for themselves important issues of social policy.” (Slip op. at 3, 15-20.)
3. The Ninth Circuit panel “ignores the adverse implications of its opinion on our federal structure.” “The panel fails to recognize the principle that marriage law, like other areas of domestic relations, has been and should continue to be an area committed to the states.” (Slip op. at 3, 20-25.)
4. The Ninth Circuit panel opinion conflicts with the recent Sixth Circuit opinion and neglects to address the issues raised in that opinion. (Slip op. at 1-3.)