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BREAKING: 9th Circuit DENIES request to re-hear Prop 8 case

9th Circuit Court of Appeals Prop 8 trial

By Scottie Thomaston

The judges sitting in the Ninth Circuit have issued a new order in the Perry v. Brown case today. The full panel of Ninth Circuit judges have decided that en banc rehearing of the three-judge panel’s decision will not be granted. This comes after a months-long wait: the proponents of Proposition 8 announced their intention to seek en banc review of the Ninth Circuit’s three-judge panel decision on February 21 of this year. As we noted yesterday, the decision to deny rehearing of the case with a new, randomly-selected eleven judge panel means that Judge Reinhardt’s opinion, which was joined by Judge Michael Daly Hawkins and garnered a dissent by Judge N. Randy Smith, either way, will likely be appealed to the Supreme Court where the proponents will now likely file a petition for certiorari, asking them to review and possibly overturn Judge Reinhardt’s opinion for the Ninth Circuit’s panel of three judges.

An en banc rehearing at the Ninth Circuit Court of Appeals is much different from other circuits. Generally, en banc means that the entire court will rehear the case, with all judges in the circuit participating. But the Ninth Circuit has an inordinately large number of judges, so they have a procedure wherein they have an ‘en banc panel’ consisting of eleven judges: ten randomly-chosen judges plus the Chief Judge (at the Ninth Circuit that is Alex Kozinski) presiding. If rehearing had been granted, the randomly selected panel could have heard arguments and issued new briefing in the case or they could have decided to forgo that and issue a new decision without it.

Now that en banc rehearing was denied, the proponents have 90 days to file a petition for certiorari to the Supreme Court, seeking review of the decision striking down Proposition 8. It’s likely that Justices at the Supreme Court would have their conference to take up the petition and decide whether to grant review or not sometime after their summer break in October. Oral argument would follow a few months later, and then a final decision would be issued by June or July 2013.

Judge O’Scannlain has filed a dissent from the denial of en banc rehearing joined by Judges Bybee and Bea, and in it he discusses his belief that Judge Smith’s dissent was correct. He says that “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.”

No one is certain if the Supreme Court would grant review of the case as it currently stands. Judge Reinhardt’s opinion for the three-judge Ninth Circuit panel is very narrow and the holding is specific to California’s unique legal circumstances. A denial of rehearing in this case leaves the decision California-specific and there may not be four Justices – the number needed to grant certiorari – who want to visit an issue that’s so limited in scope. On the other hand, the panel’s decision did strike down an amendment to a constitution of an enormous state involving a contentious issue. And allowing gay couples to marry in California would nearly double the amount of people in the United States who live in an area that allows same-sex marriage.

This process has gone on for so long. The complaint was initially filed on May 22, 2009 and the trial began on January 11, 2010. Judge Walker didn’t issue a decision in the case until August 4, 2010. The Ninth Circuit’s ruling came much later, with the three-judge panel issuing its ruling on February 7 of this year. Now the Perry case is entering its final phase.

Now that the Ninth Circuit has denied en banc rehearing of the three-judge panel’s decision, the case will face its final test soon, at the Supreme Court, as the proponents are widely expected to seek review of the three-judge panel’s decision. If the proponents do file a petition for certiorari the Justices will look at the petition in a conference later this year where the final decision will be made: review the case or let the Ninth Circuit’s decision be the final word in this long journey to decide the fate of the odious Proposition 8. It promises to be an exciting year.

UPDATE 1 (Jacob): Thanks to the inimitable Kathleen, here is the full order from the Ninth Circuit (via Scribd):

UPDATE 2 (Jacob): Some more details.  The original three-judge panel voted 2-1, along the same lines as the decision, to deny en banc rehearing, with Judges Reinhardt and Hawkins voted to deny it and Judge Smith voting in favor of it.

As expected, Judge O’Scannlain (who has written in favor of en banc rehearing on LGBT cases before and has excoriated the Ninth Circuit for its rulings favorable to gays and lesbians), wrote a dissent, joined by Judges Bybee and Bea, explaining why he supported the rehearing.  Here is his brief dissent, in full:

A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same- sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”1

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. We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.

For many of the same reasons discussed in Judge N.R. Smith’s excellent dissenting opinion in this momentous case, I respectfully dissent from the failure to grant the petition for rehearing en banc.

Judges Reinhardt and Hawkins also filed a response to Judge O’Scannlain’s dissent today, concurring in the denial of rehearing:

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 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.

UPDATE 3 (Jacob): I’ve updated our ‘where things stand’ page, which is the place to go for an overview of recent developments on the Prop 8 case and information about next steps.  Here’s the pertinent section about what comes next, possible Supreme Court review, and how and when the stay on the decision will operate, as some have asked about in the comments:

Where things are at today: Because the Ninth Circuit has chosen not to rehear Judge Walker’s ruling en banc, the 3-judge panels decision striking down Proposition 8 is now the appellate court’s last say on the matter.  The proponents of Proposition 8 now have 90 days to file hat is called a petition for a ‘writ of certiorari’ with the U.S. Supreme Court, which they have publicly stated they plan to do.  The Supreme Court will then have discretion to choose whether or not it wants to hear the Prop 8 case, and may ask for additional briefings before issuing its decision (this is sometimes known as “denying cert” or “granting cert”).  Because the Court takes a summer recess that starts in late June, it is unlikely any decision on whether the Court had chosen to take up the case would not happen until sometime into its fall term, which begins in October.  If the case were reheard, a decision would likely be handed down by June 2013.  In the exceedingly unlikely event that the proponents of Prop 8 do not choose to file a petition for certiorari, then marriage equality will be restored to California at the end of the 90-day period.  If they do file a petition with the Supreme Court, the Ninth Circuit has issued a stay on its decision until Supreme Court review is complete.  That means marriages couldn’t begin until the Supreme Court has officially denied cert or when it hands down its final decision, should it choose to rehear the case.


  • 1. Roque  |  June 5, 2012 at 10:07 am


  • 2. Rick  |  June 5, 2012 at 10:09 am

    What's the status of the stay? Is that now out of the hands of the 9th Circuit, and up to SCOTUS?

  • 3. Lesbians Love Boies  |  June 5, 2012 at 10:10 am

    Will they risk everything taking this to the Supreme Court? That's gonna be the big question…

  • 4. Carpool Cookie  |  June 5, 2012 at 10:29 am

    It doesn't seem to be within their personality to just stop. On the other hand, I can see NOM issuing some statement saying,

    "With the unfortunate state of the activist judges ruling the land, we must protect the voters, and marriages…we mean, opposite sex marriages…traditional marriages…um, from coming before the court in a move that could obliterate children, marriages…we mean, opposite sex traditional…wait, I already said that…What we MEAN is we don't want same sex marriages forced on the entire country and maybe the world or perhaps the Universe, so we refuse to risk a vote. Before activist judges. And children. Thank. You."

  • 5. fRaNkLiN  |  June 5, 2012 at 11:02 am

    I agree it doesn't seem in their personality to stop, but what the heck is the upshot for them? Right now the decision is limited to CA and gays and lesbians aren't a suspect class. Appealing this to the Supreme Court could very well change one or both of those – across the nation, in one day.

    Even if they were to win at the Supreme Court, California appears to now support the right of gays and lesbians to marry and this travesty will inevitably be repealed at the ballot box, an even worse tragedy for their cause.

    Given their current predicament, I guess we should expect them to go all death star, but they will ultimately implode.

  • 6. Carpool Cookie  |  June 5, 2012 at 12:02 pm

    It's difficult to predict what they might do in any circumstance, as they never do anything RATIONAL.

  • 7. Steve  |  June 5, 2012 at 10:44 am

    Even if they lose with the Supremes, it doesn't mean that every state will suddenly have marriage equality. It "only" means that if the legislature or the courts decide to have marriage equality, they can't take it away by a vote. Conceivably, it could also mean that a vote may still take place before the law goes into effect. Right now that only other state besides CA that took away rights after marriages were actually performed in Maine.

  • 8. fRaNkLiN  |  June 5, 2012 at 10:47 am

    An appeal to the Supreme Court could very well could mean that same sex marriage is legal nationwide in one ruling.

  • 9. Steve  |  June 5, 2012 at 10:56 am

    That's highly unlikely. It's not Walker's sweeping decision that goes to SCOTUS but a very narrow ruling that's specifically about the CA situation. In any case, SCOTUS rarely wants to get ahead too much of the public opinion and the general legal situation. Making such a sweeping ruling would be very uncharacteristic.

  • 10. fRaNkLiN  |  June 5, 2012 at 11:34 am

    It's not unlikely. The Supreme Court decides the case anew. They aren't limited to the current holding from the 9th Circuit, they could very well go back to Judge Walker's opinion, or issue their own opinion holding that marriage is a fundamental right for all Americans, including gays and lesbians.

  • 11. Kathleen  |  June 5, 2012 at 10:50 am

    What, exactly, a Supreme Court decision would mean can't be known until the Supreme Court writes the decision. SCOTUS is not bound by any lower court decision. If it takes the case, and even if it affirms the judgment, it can do so on more narrow or more sweeping grounds than the 9th Circuit.

  • 12. Lesbians Love Boies  |  June 5, 2012 at 11:02 am

    Kathleen, would there be any reason for SCOTUS to bind this case with any other if it goes forward?

  • 13. Kathleen  |  June 5, 2012 at 11:15 am

    I've seen comments on some blogs suggesting this case might get consolidated with the DOMA cases. But I find that unlikely as they're challenging two different laws and involve different issues and I've not seen that suggestion from anyone in the legal field (maybe there have been; I just haven't seen them).

    If another state marriage equality case–or example, the Nevada or Hawaii case–were to reach the Court about the same time, then we might see some consolidation. But those cases still have quite a way to go.

  • 14. Steve  |  June 5, 2012 at 11:21 am

    Mhh, never mind, Maine actually didn't perform any same-sex marriages

  • 15. Jim H.  |  June 5, 2012 at 1:09 pm

    Maine voters revoked what the legislature had passed and the governor had signed into law before any marriages took place. California's situation (same-sex marriage allowed, then taken away) is unique.

  • 16. Scott Wooledge  |  June 5, 2012 at 10:13 am

    Per Mr. Bink: "9th Circuit ordered stay for 90-day period until #Prop8 proponents appeal to #scotus or choose not to."

    Geidner's saying the same. 90 days to take it to SCOTUS, if SCOTUS says "no" it's all over. (If they say yes, I'm sure they'll extend the stay.)

  • 17. Bill S.  |  June 5, 2012 at 10:21 am

    The stay is already extended in the event the Supreme Court takes the case. This is written in today's decision. No gay marriages until this case is officially dead.

  • 18. fRaNkLiN  |  June 5, 2012 at 10:48 am

    Unless AFER or SF challenges the stay. I'm not sure that they would, but they might.

  • 19. Nancy  |  June 5, 2012 at 10:09 am

    Did they leave the stay on new marriages in place?

  • 20. Guest  |  June 5, 2012 at 10:11 am

    Yes. From the ruling: "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."

  • 21. Dave in Maine  |  June 5, 2012 at 10:10 am

    HA! I'm happy and a little surprised.

  • 22. jason2727  |  June 5, 2012 at 10:12 am

    We need to find out about whether the STAY is lifted.

  • 23. Kathleen  |  June 5, 2012 at 10:12 am

    The stay remains in place for at least 90 days, longer if there's an appeal to the Supreme Court:

    The link above isn't working for me. You can see the order w/dissent/concurrence here:

  • 24. Lesbians Love Boies  |  June 5, 2012 at 10:22 am

    Thank you so much Kathleen! I love it when you deliver the GREAT news.

  • 25. Lodi Gal  |  June 5, 2012 at 10:13 am


  • 26. Jansen  |  June 5, 2012 at 10:13 am

    The O'Scannlain dissent is an embarrassment. It is a political statement and reads very much like a NOM press release. It even references Pres. Obama, although he has nothing to do with the case or the petition. There is a response to the dissent which essentially calls him out on his overt politicking.

    He really is a repulsive figure. This is the same judge who last year issued a ruling that not only dismissed the challenge to DADT, but made a point of eradicating all prior holdings and factual findings so they could not be used in any future litigation. He is a holdover from another era.

  • 27. RAJ  |  June 5, 2012 at 10:37 am

    Yes, he is and both judges Smith and Bybee are hold overs from an earlier era of Mormon thinking. As indicated by the large attendance of current Church-attending Mormons in the Salt Lake City pride parade this Sunday, times are changing — especially among the younger members of that faith community.

  • 28. Alyson  |  June 6, 2012 at 9:03 am

    Are all four dissenting justices Mormon?

  • 29. _BK_  |  June 5, 2012 at 10:42 am

    Agreed on all accounts.

  • 30. alyson  |  June 6, 2012 at 9:02 am

    And if Romney wins this is exactly the kind of judge he'll appoint to appease the right wing. Another Thomas who tries to make the law fit his personal opinion. Why is this guy so vitriolic?

  • 31. karen in kalifornia  |  June 5, 2012 at 10:14 am

    Timeline clarification question from Scottie's wrapup? Assuming proponents ask SCOTUS for review, if SCOTUS denies review in the suggested October timeline, then Walker's decision hold right? and Prop 8 in California is struck down and I can get married in my own state, right?

  • 32. Jansen  |  June 5, 2012 at 10:23 am

    I think Scottie's timeline is off a little bit, but yes, if cert is denied then the stay will lift and you can get married in CA. There might be a short delay to give CA time to prepare but that would be minimal. I think that a ruling on cert likely would not come in October, but more likely in November or December.

    If cert is granted, then you'll have to wait until June 2013 and hope that we win.

  • 33. MightyAcorn  |  June 5, 2012 at 10:48 am

    I know many of the counties will be ready to issue marriage licenses as soon as they receive the final go-ahead from the CA Secretary of State and/or DOH, the agencies that supervise marriage licensing for the State. I wouldn't be surprised if they issue a directive in advance of the SCOTUS announcement saying whether marriage license issuance can begin immediately or there needs to be a delay, but at least here in L.A. County they'll be rarin' to go–Dean Logan, our L.A. Registrar-Recorder/County Clerk, has been very foot-forward when it comes to marriage equality. Imperial County, maybe not so much. 🙂

  • 34. Jansen  |  June 5, 2012 at 11:19 am

    I wouldn't want the clerk of Imperial county issuing my marriage license. She'd probably find a way to spill coffee on it.

  • 35. Kate  |  June 5, 2012 at 11:23 am

    I think everyone should head to Imperial County so Delores HAS to issue the licenses!

  • 36. MightyAcorn  |  June 5, 2012 at 11:35 am

    I was referring to Chuck Storey, the new Imperial County Clerk, who is a TeaParty hosebag. He tried to intervene in the Prop8 case re: standing but was rebuffed by the court like the creepy clown he is:

    And Kate, you can see from the article that Dolores would be HAPPY to issue marriage licenses to same-sex couples, that's why she didn't appear when these Advocates for Faith and Freedom tried to use her name to intervene. 🙂 I love Dolores for being a no-show! She's the Invisible Woman, my hero!

  • 37. Carpool Cookie  |  June 5, 2012 at 12:08 pm

    I've always wanted to know more about Delores.

  • 38. MightyAcorn  |  June 5, 2012 at 12:13 pm

    Where's Dolores? If she still works for Imperial County, maybe she'll be at the marriage license window welcoming everyone. (though it looks like she might have retired, she was there for 31 years.) 🙂

  • 39. Mike  |  June 5, 2012 at 12:27 pm

    If she's retired, all the more reason for her to be there. She won't have a supervisor to tell her to 'GET BACK TO YOUR DESK AND GET TO WORK!' And if someone does try to 'shoo' her away, she can tell them to take a flying leap (especially if she is on public property).


  • 40. MFargo  |  June 5, 2012 at 12:54 pm

    O, Lord. Let's leave 'em be. Lest someone try to sue them and we get another STAY!

  • 41. Mike  |  June 6, 2012 at 2:26 pm

    And how did I say she HAS to be there?

    My words were "all the more reason for her to be there."

    And that is a requirement that she is, or is not, there?

  • 42. MightyAcorn  |  June 5, 2012 at 3:03 pm

    And because she used to be The Big Boss of the whole place….I doubt they'd give her any flak. 🙂

  • 43. fRaNkLiN  |  June 5, 2012 at 10:51 am

    I think the AG has already noted that they are prepared to immediately begin issuing marriage licenses when the stay is lifted or a decision is finalized. I don't think Kamala Harris will drag her feet on this. She's likely to want to issue the first license herself.

  • 44. johnfromco  |  June 5, 2012 at 11:17 am

    It's not like it would take a lot of work to issue the licenses. Even in "worst case" they would just have to cross out either "husband" or "wife" and write the appropriate term on the form. So I can't see why they would need to prepare.

  • 45. fRaNkLiN  |  June 5, 2012 at 11:37 am

    I'm sure there are some leftover marriage license applications from 2008 in storage somewhere.

  • 46. MightyAcorn  |  June 5, 2012 at 11:52 am

    Naah, everyone can use the ones we have now, which is why we'll be ready to go very quickly. My concern is that the chain of command has to be honored–the State has to officially instruct the counties to begin marriage license issuance–but if they're smart they'll issue a notice ahead of time giving an authorization to begin immediately. It is exciting. Wouldn't it be sweet if I could start marrying same-sex couples again for Christmas (fyi, I marry people for a living–not like Kim Kardashian does, like an authorized notary/wedding officiant does.) 🙂

  • 47. DaveP  |  June 5, 2012 at 2:30 pm

    Hah! Good one : )

  • 48. MightyAcorn  |  June 5, 2012 at 11:40 am

    johnfromco: as a person who issues marriage licenses for L.A. County, let me set you straight–you can't "just cross out" ANYTHING on a recordable legal document, it won't be accepted for recording.

    However, you're right that a minimum amount of preparation will be needed as far as the documents are concerned. In CA, our marriage licenses don't say "bride" and "groom" like they used to…well, only as optional checkboxes in the margins. Parties on the marriage license application and certificate are already referred to as "First Person" and "Second Person." These changes were made in anticipation of same-sex marriage becoming legal in 2008. 🙂

    There might be other reasons for delay however–a need to deploy security or additional personnel. However, I agree Kamala will race to the phone and make this stuff happen ASAP, I would hope within a day. And what a glorious day that will be….I'll be there!

  • 49. Scott Wooledge  |  June 5, 2012 at 10:24 am

    Yes. If SCOTUS denies appeal, the 3 judge appeal decision stands alone, and presumably marriages will be able to resume immediately.

  • 50. Kathleen  |  June 5, 2012 at 10:25 am

    Yes. If SCOTUS denies review, then the 9th Circuit issues its mandate and the 9th Circuit decision goes into effect, allowing same sex couples to marry in California.

  • 51. takemusu  |  June 5, 2012 at 10:36 am

    Allowing them once again to marry in CA. So would I be correct in assuming that Strauss V Horton still applies and the 18,000 or so of us who found a minister, got the license, chose something to wear and …. oh right, had to find someone I wanted to marry. Wait, I already had that … so anyway …. we're still married, right? 😉

  • 52. AnonyGrl  |  June 5, 2012 at 11:14 am

    You are still married, yes. 🙂

  • 53. DaveP  |  June 5, 2012 at 2:32 pm

    I think it will mean that you guys are super-DUPER married : )

  • 54. jpmassar  |  June 5, 2012 at 2:14 pm

    That's correct.

  • 55. Jansen  |  June 5, 2012 at 10:14 am

    The O'Scannlain dissent is an embarrassment. It is a political statement and reads very much like a NOM press release. It even references Pres. Obama, although he has nothing to do with the case or the petition. There is a response to the dissent which essentially calls him out on his overt politicking.

  • 56. Steve  |  June 5, 2012 at 10:41 am

    *Everything* is Obama's fault for the Republicans

  • 57. JoeRH  |  June 5, 2012 at 10:15 am

    “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.”

    This is news? Of course it's animus! What a bonehead (and the other two judges as well).

  • 58. Rich  |  June 5, 2012 at 10:50 am

    All O'Scannlain need do is check out the NOM blog. He'll see plenty of the very animus he refers to in his dissent.

  • 59. Lymis  |  June 5, 2012 at 11:50 am

    That little quote is going to haunt him like Scalia's little tirade in the Lawrence dissent that explicitly says in a formal court document that with Lawrence in place there is no justification for denying same sex marriage.

    I'm still waiting to see how he weasels his way around that one.

  • 60. bythesea  |  June 5, 2012 at 1:16 pm

    He'll manage…

  • 61. RWG  |  June 5, 2012 at 12:07 pm

    Millennia….a little hyperbole there. Until very recently marriages were economic arrangements between families, arrangements in which neither the bride nor the groom had much say in who was getting hitched, or how many cows or acres of land had to be exchanged to seal the deal. Until much more recently, those marriages (in this country, at least) had to be between people of the same skin color. Things change, Judge O'Scannlain. Try to get used to it.

    Millennia…good one!

  • 62. joe  |  June 5, 2012 at 12:57 pm

    A millennia??? 1000 years ago, marriage that vaguely resembled what we see today was practiced by a very very very small minority, and then very inconsistently!!

  • 63. Steve  |  June 5, 2012 at 1:17 pm

    One thousand years ago, priests were usually not involved in marriages. That didn't happen until around the 12th and 13th centuries.

  • 64. Alyson  |  June 6, 2012 at 9:17 am

    It's like these guys ignore or do not accept as findings of fact the evidence presented in walkers court? Can they just act like that wasn't presented? Gathering evidence like that was a brilliant move and I'm not sure a straight judge would have thought of it. So much of what was said about LGBT people was stereotype accepted as fact before they had to prove it. I loved watching them try to prove it!

  • 65. Fluffyskunk  |  June 7, 2012 at 9:53 pm

    Your honor, you don't need evidence!

  • 66. Sagesse  |  June 5, 2012 at 10:17 am


  • 67. Hachikō  |  June 5, 2012 at 10:20 am

    Excellent news! A little closer to equality for ALL citizens.

  • 68. Carpool Cookie  |  June 5, 2012 at 10:22 am

    Re: Scannlain's "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.”


  • 69. fRaNkLiN  |  June 5, 2012 at 10:53 am

    at least he's finally realizing it!

  • 70. johnfromco  |  June 5, 2012 at 11:24 am

    I'd also ask "existed where for millennia?" If you're talking England and then the USA, perhaps. If you are talking "the heritage of the people who form the USA today", then certainly not. Nor if you are talking "the people of the land that is now the USA."

    But these people would have banned interracial marriage too, to preserve the definition as it has existed for "millennia". They would deny the idea that a woman could be raped by her husband (that finally became a crime in all 50 states in the early 80s – before than it was legal doctrine in one or more states that she consented to sex, even unwanted and forceable sex, with her husband by saying "I do"). And I won't even discuss divorce here, but certainly that's a legal change that has only taken place in the last 100 or so years (at least for the vast majority of divorce).

    They have exposed their ignorance – of human rights, of history, and of marriage. I won't accept the argument that would have allowed spousal rape, denied interracial marriage, and prohibited almost all divorce. Nevermind that we've had several recent decisions in Prop 8 and DOMA that shred the "tradition" argument. The only argument they have left is "Well, *WE* believe that it would affect kids and procreation, even though it is conclusively been proved otherwise. We're ignorant and have no desire to become otherwise and thus the law is valid."

  • 71. Mike  |  June 5, 2012 at 12:38 pm

    About the only thing I can think of that has been 'for millennia' is/was slavery. It's mentioned in the Old Testament (even instructions on who may, and who may not, be held as a slave, and not entirely banned in what is now the US until the passage of the 13th Amendment at the end of 1865 (although, if put to a vote, I wouldn't be surprised if voters in some states would reinstate it. Sure would go a long way in taking care of unemployment among many minority groups would probably be their excuse.)

  • 72. MFargo  |  June 5, 2012 at 12:59 pm

    I think he meant "The Bible," although since translations differ…who knows. 🙂

  • 73. Bob  |  June 5, 2012 at 10:22 am

    Well if anyone is looking for an update on the prop8 case,,, today they got it,,,,

    DENIED ,,, that step is over,,, now cleared for the Supreme Court,,,, I think this is good news,,,,, except it's back to waiting for all those couples,,,,, watching for the response from NOM,,,, but slow as it is marriage equality is coming for Californians,,, no doubt about that,,,,,,,, happy day,,,,

  • 74. Str8Grandmother  |  June 5, 2012 at 10:24 am

    Hey, I tweeted Prop8TrialTracker within 15 seconds of the decision.

  • 75. Bob  |  June 5, 2012 at 10:46 am

    saw that ,, Str8Grandmother,,,, and also that you phoned the court,,,, like that a lot,,, thanks

  • 76. MFargo  |  June 5, 2012 at 1:00 pm

    Yes. Again, thanks for all that you do.

  • 77. Yetunmarried  |  June 5, 2012 at 10:24 am

    What is so funny to me is the reference to "millennia". What, is he suggesting we go back to the laws of 1,000 years ago? Or are we now discussing marriage throughout the world? because there was no CALIFORNIA government to marry people then -which is what this case is about and not about "Adam and Eve" as his "millennia" comment may suggest.

  • 78. Steve  |  June 5, 2012 at 10:39 am

    According to him, the Earth is only 6000 years old and that's how old marriage is

  • 79. Jansen  |  June 5, 2012 at 10:45 am

    That is also how old he is. I think he officiated at the Adam and Eve wedding.

  • 80. Lymis  |  June 5, 2012 at 11:51 am

    I fail to see in the Bible where Adam and Eve ever got married.

  • 81. MightyAcorn  |  June 5, 2012 at 12:09 pm

    Right, they were living in sin and that's why we all suffer damnation now. GOOD ONE, A&E.

  • 82. Steve  |  June 5, 2012 at 12:22 pm

    Nope. That's because Eve ate from a magic apple after being convinced to do so by a talking snake. Of course it was all a setup by god and they didn't even know good from evil.

  • 83. Carpool Cookie  |  June 5, 2012 at 12:12 pm

    I've often wondered about Adam & Eve's marital status, as well.

    Are we all the descendants of BASTARDS???? (Not to mention, incestuous ones???)

  • 84. Steve  |  June 5, 2012 at 12:24 pm

    As always, also read the alt-text

  • 85. MFargo  |  June 5, 2012 at 1:02 pm

    We need to get you into a good Sunday School, Carpool Cookie!

  • 86. Straight Dave  |  June 5, 2012 at 6:50 pm

    As a teacher or a student?
    That honestly wasn't clear to me.

    I think I'd prefer teacher.
    My old SS teachers sure missed that one.

  • 87. MFargo  |  June 5, 2012 at 8:14 pm

    Being serious, I think all denominations would benefit from both.

  • 88. _BK_  |  June 5, 2012 at 10:45 am

    EXACTLY. And what type of marriage are we looking for? The marriages in which women were property? I could repeat talking points but it essentially boils down to, marriage HAS CHANGED over time and it will continue to change. Its extension to LGBT couples is only a natural and proper progression.

  • 89. MightyAcorn  |  June 5, 2012 at 10:57 am

    Yes, this dissent is really embarrassing and so ignorant, as the current "definition of marriage" he thinks he's defending is, in fact, only a couple hundred years old–that is, marriage as a civil contract between two consenting people. He should read Nancy Cott's excellent book "Public Vows" and update his knowledge of how our marriage laws came to be. Before France and America made marriage a far more democratic institution–only a few hundred years ago–marriage was far less egalitarian and far more coercive, and until that shift the large majority of marriages worldwide were polygamous. His assertion that consenting, monogamous marriage has been culturally entrenched for thousands of years is just historically and factually wrong.

  • 90. johnfromco  |  June 5, 2012 at 11:27 am

    It's also very euro-Christian-centric, and ignores traditions from Asia, Islamic nations, and Native Americans. But of course that's just another form of animus – racially and religious based instead of orientation based – so I not particularly surprised. These people don't believe in equality.

  • 91. MightyAcorn  |  June 5, 2012 at 12:07 pm

    Oh, they believe in equality all right….for affluent white Christian males. Everyone else is beneath them and can go lump themselves.

    This is not an unhistoric view of equality, as we all know; it has been with us from the beginning of our nation and still pervades every level of our society. Still…this case is digging sizeable chunks out of that stony monolith of prejudice and privilege, and we just have to keep chipping away until we make those words about being "all men created equal" a reality for everybody (including us non-men.)

  • 92. Cat  |  June 5, 2012 at 10:29 am

    YES!!! This will be interesting…

  • 93. Jacob  |  June 5, 2012 at 10:30 am

    In other good news:

  • 94. Gregory in SLC  |  June 5, 2012 at 10:36 am

    sweet : )

  • 95. Bill  |  June 5, 2012 at 10:34 am

    "He says that “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.”

    I'm not sure if that is a dissent so much as it is the truth.

  • 96. Glen  |  June 5, 2012 at 10:52 am

    Indeed not only is that the truth, but that is EXACTLY what the court basically ruled (without coming right out and saying it).

    After a concerted effort by the Proponents the court found that there were NO legitimate reasons for taking away the existing right of same-gender couples to avail themselves of California marriage law.

    The only reasons left were illegitimate ones (which almost certainly includes a lot of animus – and a lot of ignorance).

  • 97. Str8Grandmother  |  June 5, 2012 at 2:28 pm

    You are right Glen and you stated it and summarized it very nicely.

  • 98. Deeelaaach  |  June 5, 2012 at 10:18 pm

    So are the en banc judges required to actually read the trial record? My guess is that they did not, or they decided the findings of fact weren't fact – in their own (un)studied opinions. And please forgive any logic flaws here – I'm very fatigued at the moment.

  • 99. Steve  |  June 5, 2012 at 10:38 am

    O’Scannlain stupidity and ignorance defies description

  • 100. Carpool Cookie  |  June 5, 2012 at 12:14 pm

    His grandchildren will be changing their name.

  • 101. DaveP  |  June 5, 2012 at 2:57 pm

    Not so fast! I'm certainly willing to describe it! Let's all give it a try!

  • 102. Jon  |  June 5, 2012 at 10:47 am

    In all seriousness, what's with the poorly argued dissent? While we may disagree with him, the other two O'Scannlain opinions I read were strongly argued. This comes across as an angry letter to the editor with no legal reasoning. He had a month to write it, and two concurring judges to help…

  • 103. Steve  |  June 5, 2012 at 10:53 am

    Did you read his dissent in the Prop 8 case? That was already pretty embarrassing. This one just follows exactly the same thinking

  • 104. fRaNkLiN  |  June 5, 2012 at 11:09 am

    One month? He's had FOUR!

  • 105. DaveP  |  June 5, 2012 at 2:59 pm

    Well, he can only argue with what he has available. There simply isn't any legitimate argument. If there had been, it would have come up long before now.

  • 106. Straight Dave  |  June 5, 2012 at 7:00 pm

    Yeah, but appellate judges aren't supposed to argue stupidity. They're supposed to argue the law. They're supposed to show up unbiased and just listen and think.

    No?….what's that you say?…..crap!!…..{{{shatter}}} ……sighhhhh…..

  • 107. Matt  |  June 5, 2012 at 5:09 pm

    He simply helped our side by yet again proving there is no rational argument against same-sex marriage.

  • 108. Glen  |  June 5, 2012 at 10:49 am

    Why do these guys seem to dismiss the nearly equal number of California voters who voted against Proposition 8.

  • 109. JoeRH  |  June 5, 2012 at 11:57 am

    I always think of that too. I guess those on the side that "won" are the only Californians who matter. Just another reason why we can't put human rights on the ballot. If the majority says they're better than the group who is subject to blind judgement, then we're to assume the ENTIRE STATE is against that particular group? The US is such a joke sometimes.

  • 110. Eric  |  June 5, 2012 at 11:01 am

    Judge O'Scannlain is inconsistent when he references both Judge Smith and a one-man one-woman standard of marriage for millennia.

    Smith is a descendant of Joseph Smith, who practiced polygamy not that long ago. Not "one-man, one-woman" marriage at all.

  • 111. Lymis  |  June 5, 2012 at 1:00 pm

    I've heard people get around that – they claim that polygamy is allowing multiple marriages, not a group marriage – that the man with two wives has two marriages that are "one man and one woman" but that the two women have no legal relationship to each other and are not in the same marriage at all. They are not each other's wives, they are the man's wives. Effectively, they claim, it's just concurrently running serial monogamy.

  • 112. DaveP  |  June 5, 2012 at 3:01 pm

    Wouldn't that be 'parallel monogamy'?

  • 113. MightyAcorn  |  June 6, 2012 at 11:46 am

    Yeah, that claim is a very bad rhetorical attempt to run around the definitions of these words, perhaps made by people who are ignorant of what the word "monogamy" means.

    The wives in a polygynous marriage might not have a marital or sexual relationship with each other, but the husband has more than one marriage and is therefore NOT monogamous in any way. "Concurrent running serial monogamy" is a very clumsy and self-contradictory attempt (how can it be "concurrent" *and* "serial," pray tell?) to avoid the stigma of the word "bigamy." Not even an admirable try.

  • 114. david0296  |  June 5, 2012 at 11:07 am

    Judge O’Scannlain opinion is laughable. Tradition can NEVER be used as justification for discrimination; and as we all know, marriage has NOT been the same institution for a "millennia". Two centuries ago, women were considered chattel in marriages, and polygamous marriages were legal. 60 years ago, interracial marriage didn't even exist. So, yes, I'm labeling O'Scannlain a liar and a homophobe. If the label fits…

  • 115. johnfromco  |  June 5, 2012 at 11:28 am

    I'd add racist too, for assuming that the traditions of white Europeans (whether real or imagined) are the same as the traditions of all Americans.

  • 116. fRaNkLiN  |  June 5, 2012 at 11:08 am

    I know there is a process to request a full panel of the circuit, a super en banc review so to speak. Who knows anything about that? Can proponents still play that card?

  • 117. Jansen  |  June 5, 2012 at 11:20 am

    No, this was that card. We are done in the 9th Cir and only SCOTUS remains.

  • 118. Kathleen  |  June 5, 2012 at 11:21 am

    Procedural rules might allow for that request (would have to review to see if okay to ask at this point). But if Proponents can't get a majority vote for an en banc panel, I don't see how they could get a majority for a so-called super en banc. I don't see even the Proponents indulging in such a ridiculously obvious delaying tactic.

  • 119. Kate  |  June 5, 2012 at 11:31 am

    You give them more credit than I. It wouldn't surprise me a bit if their huge egos led them right to the super en banc door.

  • 120. Kate  |  June 5, 2012 at 11:32 am

    And self-righteousness. Don't forget self-righteousness.

  • 121. MFargo  |  June 5, 2012 at 11:53 am

    "Delay" is the name of their game.

  • 122. Carpool Cookie  |  June 5, 2012 at 12:19 pm

    Yes. They want to keep breathing the Restrictive Air as long as they can. Makes them feel safe.

  • 123. Iskandar  |  June 5, 2012 at 2:05 pm

    I believe an en banc opinion would first have to be issued. Thanks to Leo for noting this in another post:
    "In the unlikely event that six judges might command a majority of an 11-judge en banc court and express a view inconsistent with the views of the other 21 active judges on the court, the circuit rules provide for review by the full court upon the request of any judge. This has never happened since the limited en banc rule was adopted by the Court in 1980." Chief Judge Kozinski

  • 124. Guest  |  June 5, 2012 at 11:25 am

    Rule 35-3 doesn't seem to establish any particular deadline or procedure for requesting a super en banc rehearing, but logically it makes no sense to request one when the court has refused to hold even a limited en banc hearing. I think it's safe to say there will be no petition for super en banc.

  • 125. fRaNkLiN  |  June 5, 2012 at 11:31 am

    When have the proponents been confined to logic?

    They may look at the dissents and decide there is a fair chance of the full court deciding to take the case. I don't know, at the very least it could be a delay tactic, which is all they can really hope for.

  • 126. Mike  |  June 5, 2012 at 1:13 pm

    Their 'delay tactic' so far has not really delayed any decision. Any delays so far, and there was only one major delay, was the 9th asking the California State Supreme Court for information on standing, and having to wait for almost a year for that information.

    The Supreme Court goes back into session on October 1. The only time a case can be accepted (aka cert. granted) is on conference days. With a 90 day period to ask for cert., the proponents of Prop H8 have until September 3. which is well before the first scheduled conference day (September 24, actually prior to the opening of the 2012/13 term). If there are other cases before the Prop H8 request, the next conference days are October 5, 12 and 26. I suspect we will know if SCOTUS will accept the case by the end of October. If it does, we'll also know the dates for oral argument, and have a decision by the end of June, maybe (but doubtful), early July.

    If SCOTUS does not accept the case, marriage equality should be available in California by Thanksgiving at the very latest!

    My guess is that we are now about five months away from having marriage equality in California, or less than 13 months (depending on whether SOCTUS declines or accepts the case).

    SCOTUS calendar at:

  • 127. Str8Grandmother  |  June 5, 2012 at 2:32 pm

    Nice work Mike 🙂

  • 128. Leo  |  June 5, 2012 at 12:00 pm

    22-4(d) Any active judge may request a rehearing of the decision of the en banc court by all the active judges of the Court.

    But in this case, there is no "decision of the en banc court" to rehear. The denial of rehearing en banc is already by the full court.

  • 129. NancyH  |  June 5, 2012 at 11:20 am

    There is also the issue of whether a gay judge can preside on a marriage equality trial as well as the ability of a backer of a proposition to appeal to the supremes. Wouldn’t SCOTUS have to first determine if the backers had standing and then proceed from there?

  • 130. NancyH  |  June 5, 2012 at 11:23 am


    Lets hope DOMA and Prop 8 don’t get combined. The 1st Circuit’s ruling hinges specifically to the facts of DOMA. Adding prop 8 would weaken that argument by deterring away from the Full Faith and Credit Claus of the Constitution.

  • 131. Scott Wooledge  |  June 5, 2012 at 11:32 am

    Poor Judge O’Scannlain.

    What I want to know is when will all these poor Christians who have been "silenced," actual be silent? It seems they never shut up.

  • 132. Kathleen  |  June 5, 2012 at 11:39 am

    ^ yes, that.

  • 133. fRaNkLiN  |  June 5, 2012 at 11:40 am

    LOL. +1

  • 134. Str8Grandmother  |  June 5, 2012 at 12:32 pm

    I'll give you a thumbs up for that Comment Scott W

  • 135. MFargo  |  June 5, 2012 at 11:45 am

    It's so peculiar that the dissenting justices are hung up on each state deciding. When the California Supreme Court DID decide, then some outsides interests funded a campaign and vote that two Federal Courts have now found unconstitutional. It doesn't sound like they want each State to decide; it sounds like they don't want same sex couples getting married. (Just an observation)

  • 136. Steve  |  June 5, 2012 at 11:49 am

    They want the "right" people to decide, i.e. good Christian voters, not librul activist judges

  • 137. MFargo  |  June 5, 2012 at 11:51 am

    (Can we have an "Amen" on that?) 🙂

  • 138. Derek Williams  |  June 5, 2012 at 11:53 am

    What is it with people whose profession and whose hobby and whose obsession centers around the denial of equal civil rights to complete strangers to themselves?

  • 139. Straight Dave  |  June 5, 2012 at 12:05 pm

    sick. damaged. angry. resentful. lost. ignorant.
    And they're taking it out on the only victims they can find right now that won't get them arrested and/or shunned. (But not for much longer)

    Sad, really, that this is the best they can find to do with their time.

    /end personal rant

  • 140. Str8Grandmother  |  June 5, 2012 at 12:35 pm

    What is with them Derek? In my opinion they are simply Heterosexual Supremacists, no different than White Supremacists. In other words they are Assholes. (Sorry for the vernacular to those here who are offended by the curse word, sometimes it just fits.)

  • 141. Sid  |  June 5, 2012 at 2:26 pm

    Grandmothers, above everyone else, have earned the right to speak their minds, IMHO. Good for you!

  • 142. Jonny  |  June 5, 2012 at 2:25 pm

    Some of them are closet cases (also see: the Vatican).

  • 143. Pal  |  June 5, 2012 at 4:08 pm

    Christianity, the root of all evil. Plain and simple. Christians are the enemy.

  • 144. Ann_S  |  June 5, 2012 at 12:10 pm

    Old pic, new story:

  • 145. DaveP  |  June 5, 2012 at 3:08 pm

    Hi Ann! Hi Stuart!

  • 146. Leo  |  June 5, 2012 at 12:24 pm

    Has anyone noticed that although Judge O’Scannlain praises Judge Smith's "excellent dissenting opinion," Judge Smith does not return the favor? Judge Smith voted with Judge O’Scannlain to grant rehearing en banc, yet did not sign on to his dissent.

  • 147. Bill S.  |  June 5, 2012 at 1:28 pm

    I have a feeling a lot more judges voted to re-hear en banc but deliberately did not sign on to O'Scannlain's dissent. This decision was not held up for 4 months over a single, 3-paragraph opinion.

  • 148. Eric  |  June 5, 2012 at 2:02 pm

    Huh? Smith is the only one cited other than the dissenters.

  • 149. Bill S.  |  June 5, 2012 at 6:00 pm

    The only people who signed their names to their vote were the 3 judges on the original panel (Reinhardt and Hawkins voted to deny en banc; Smith voted to accept en banc) and the 3 judges who signed onto the dissenting opinion. This is 6 judges out of the 27 active members of the 9th Circuit. We will never know how the other 21 members voted.

  • 150. EricKoszyk  |  June 5, 2012 at 12:34 pm

    Judge O'Scannlain's dissent is full of inaccuracies, especially concerning how same sex marriage goes against "a definition of marriage that has existed for millennia." Just what is he talking about?

    Many societies have had official same sex relationships, including many Native American tribes. You know, the folks that have been here the longest. Or I guess they don't count in his world view.

    This brings up something I have felt for a long time — that the marriage equality movement should quietly approach different Native American tribes and should try to get them to vote to officially recognize same sex couples (such as the Suquamish Tribe of WA and the Coquille Tribe of OR).

    It would highlight how the O'Scannlain's of the world are historically incorrect and it would add other governmental entities into the legal fight for marriage equality.

  • 151. fRaNkLiN  |  June 5, 2012 at 1:29 pm

    Most americans that are against marriage equality like native americans about as much as they like gay people.

  • 152. Scott Wooledge  |  June 5, 2012 at 1:34 pm

    The "definition of marriage" included polygamy for most of those millenniums.

    Oops. Looks like it got redefined somewhere. If only we could pinpoint that moment in history.

  • 153. Deeelaaach  |  June 5, 2012 at 11:11 pm

    Please don't forget that polygamy isn't actually polygamy for the purposes of arguing against marriage equality. It's multiple cases of concurrent monogamy. So why do we have bigamy laws? I mean they are also cases of concurrent monogamy? Wouldn't these folks be in *favor* of concurrent monogamy? Why aren't they out there trying to legalize polygamy, oops, I meant concurrent monogamy?

    Instead, they say that marriage equality would lead to concurre… oops, I mean polygamy, oops, wait, concurrent monogamy… Which is it? So it's polygamy if marriage equality becomes legal, and it's concurrent monogamy for the purposes of arguing against marriage equality. So they're saying that it's not polygamy because that would justify marriage equality, but we can't have marriage equality because that would lead to polygamy, oops, I mean concurrent monogamy. I don't see logic here, but I do see hypocrisy. But I'm sure someone can come up with some awfully contorted logic (I mean hypocrisy) to explain this idiocy.

  • 154. MightyAcorn  |  June 6, 2012 at 11:26 am

    Polygamy is NOT "concurrent monogamy"–that is an oxymoron that can only be parsed as "bigamy." "Monogamy" means having one partner only, and the man in a polygynous marriage (which is the correct term for what most people refer to as "polygamy") has more than one partner, even if the women do not and there is no marriage or sexual relationship between the wives.

    I'm sorry, but trying to convince people that polygamy is "concurrent monogamy" is like the oft-quoted nonsense "Evolution is only a *theory*." People who say that clearly don't know what a theory is: a principle with a great deal of evidence behind it, held to be a well-established premise (what they mean is "hypothesis," which in the case of evolution is just untrue.)

    Thanks for calling me a hypocrite. FYI, I have no moral objections to polygamy in any form, as long as the participants are adults and fully informed/consenting. However, "marriages" with multiple partners defeat much of the legal purpose of marriage and create a bureaucratic nightmare, since part of the reasons marriages are registered at all is to establish which person has the *exclusive* legal right to inherit, to make medical decisions for the other partner, etc. There's no point in licensing multiple partner marriages because in essence that would be granting those "exclusive" rights to several people, who would then argue, who would then end up in court, and the major reason for marriage licensing in the first place was to reduce court involvement in property/inheritance/probate issues, to make it clear who had those exclusive rights. In multiple-partner marriages, it would be just as unclear as without legal marriage, so there's just no point.

    Finally, if you study actual polygynous communities in the USA (FLDS etc.) they LOVE that multiple-partner marriage is not legally recognized. The second, third, fourth etc. "wives" apply for welfare as single moms, so their legion of children are sucking tax dollars instead of burdening the husband with their economic care….as clearly, he has other things (and wives) to do. You only see idiots like the "Sister Wives" family petitioning the courts to legalize polygyny.

  • 155. MFargo  |  June 5, 2012 at 3:12 pm

    Most individuals with the Judge's argument come from a narrow (-minded) perspecive of a religious viewpoint, i.e. "the covenant of marriage." it doesn't occur to them that civil marriage exists.

  • 156. Our Marriages Seem To Be &hellip  |  June 5, 2012 at 1:04 pm

    […] BREAKING: 9th Circuit DENIES request to re-hear Prop 8 case […]

  • 157. Jonny  |  June 5, 2012 at 2:04 pm

    Here's what I don't understand:

    Say SCOTUS denies cert. Then marriage equality is the law of the land in CA.

    But why is it limited to CA? Is it because marriage was legalized, then taken away?

    Couldn't similar, rightful challenges arise in other 9th circuit states like WA and AZ?

  • 158. jpmassar  |  June 5, 2012 at 2:12 pm

    Yes (because legalized, then taken away).

    No other state has legalized same-sex marriage and taken it away. New Hampshire legislators tried, but failed.

  • 159. Jon  |  June 5, 2012 at 2:23 pm

    So if a legislature passes it (like WA) but then there is an immediate stay, that doesn't qualify as being taken away?

    I still don't understand the logic of the majority voting on minority rights.

  • 160. jpmassar  |  June 5, 2012 at 2:49 pm

    Since the law never went into effect (as with Maine and Maryland as well .as WA) most argue that there was no right taken away.

    I suppose someone could challenge it — saying that once the legislature had passed the law and it had been signed the people had no right to undo it, just as with Proposition 8. But no one has tried to do so yet and probably won't because of the likelihood that the argument would fall flat.

  • 161. takemusu  |  June 5, 2012 at 3:50 pm

    My understanding of WA is the situation here in WA is very similar to where we were in CA right before 8. Washington had Domestic Partnership. This was expanded to what's sometimes called "Everything But the Name" and that's DP but with all the states rights of married couples.

    This year the legislature "gave us" marriage. I say "gave us" because we have been fighting for it. Washington has a referendum process like California. So they had to be given time to come up with signatures to counter the gift, a stay was imposed to allow them the time. Now the opposition to equality has gathered signatures and we have to fight to approve the right we already had.

    Make sense? No, not to me either. Get active here:

  • 162. GrayCoyote  |  June 6, 2012 at 12:08 am

    No, because in California, marriage was available for 5 months and then taken away. No marriages will take place in Washington until the vote on R-74 has taken place. If R-74 is rejected, then no marriages will take place, and we'll be in the exact same position as the Sevcik plaintiffs in Nevada.

  • 163. fRaNkLiN  |  June 5, 2012 at 3:49 pm

    No. The decision in Perry notes that the particular circumstances in CA are irrational. California provides gay couples with every single right that straight couples has, but they took back the word "marriage" from gay people only. It's as if the state said we'll give red-heads ever single right that other people have, but they can't call themselves "citizens" but are only allowed to refer to themselves as "step children". It's just not rational under any level of review because it simply makes no sense to differentiate between the two groups and only to create a difference. In other words, the classification wasn't related to a need of the government, as it obviously could not have been.

    Another state could conceivably allow gays and lesbians to have civil unions and allow opposite sex couples to be married, provided there was some rational reason for the different classifications. I don't know what that reason would be, but in the example above it might go something like this: red heads are scientifically proven unable to manage their finances. The state says that "citizens"can manage their finances freely, but that "step children" have to go to a financial consultant once a month. In that example, then it might be rational to make a distinction between "citizens" and "step children" in order to govern them.

    Sorry, this post was probably offensive. Apologies to red headed step children everywhere.

  • 164. MichGuy  |  June 5, 2012 at 2:30 pm

    Please go to youtube and report this video.
    NEWS: Church teaches toddler’s to sing anti-gay song during church.
    [youtube iRNbC-aSFLc&feature=player_embedded#!! youtube]

  • 165. Str8Grandmother  |  June 5, 2012 at 3:01 pm

    MichGuy, this has been around for about a week now. Are you just now seeing this? There was a small protest at the church last Sunday with a bigger one planned for this Sunday.

  • 166. MichGuy  |  June 6, 2012 at 6:00 am

    I just say it yesterday. It was news to me. Thanks!

  • 167. Str8Grandmother  |  June 5, 2012 at 2:44 pm

    Oh Judge O’Scannlain, sorry you didn't get the memo with the actual Trial Testimony attached. You know the EVIDENCE. So apparently you did not read the testimony of Dr. Nancy Cott, Professor of History Harvard University, who studied the History of Civil Marriage in America for 10 years before writing the definitive peer reviewed book on it.

    Here allow me to give you the cliff notes version of her testimony so that you are clear that your statement of "a definition of marriage that has existed for millennia." has no EVIDENCE to justify it.
    Perhaps you are not aware of it but we have a deep History of Discriminating against disfavored Minorities with our Marriage Laws. Since DAY ONE we have practiced Discrimination using Marriage Laws, since Day ONE and we continue this shameful behavior even in 2012.
    At the start of our country most people of the world lived in polygamous relationships, and a marriage of just 2 people was globally, not the norm.
    -Discrimination – African Slaves were not permitted to marry
    -Coveture – A woman voluntarily gave up her individual legal status when she married.
    The legal status of a married woman, considered to be under her husband's protection and authority.
    -Discrimination – black and white citizens were not permitted to marry.
    -Discrimination – Asian immigrants, particularly Chinese were not permitted to marry a white person.
    -Discrimination – A woman lost her United States Citizenship if she married a foreigner
    Undisputed Historical FACT- the State has never had as a PRIMARY purpose of marriage, pro-creation. The States PRIMARY interest has ALWAYS been about creating stable households, and same gender couples are capable of doing that equally as well as heterosexual couples.
    We can see that the State has, over the years, changed the qualifications of who may obtain a marriage license. One by one we eliminated discriminatory Marriage Laws. The Institution of Marriage never changed, all that changed was that more people entered it.

  • 168. Leo  |  June 5, 2012 at 3:08 pm

    At the start of our country most people of the world lived in polygamous relationships, and a marriage of just 2 people was globally, not the norm.

    Is that actually true? Not saying it isn't, but a citation would be appreciated.

  • 169. Str8Grandmother  |  June 5, 2012 at 3:26 pm

    Yes Leo that is true. Day one of the Perry Trial just search for the word "Cott" she says it fairly early in her testimony.

    In my opinion I think Dr. Cott's testimony was the most important testimony in the whole trial. She was never successfully knocked down in Court by the other side. Her testimony stood.

  • 170. de novo  |  June 5, 2012 at 3:39 pm

    Can't a de novo review ignore evidence and only look at the facts that support a judges personal view point? I'm not saying its right, but ignore indeed is what happened here.

  • 171. Str8Grandmother  |  June 5, 2012 at 3:55 pm

    Judges can't ignore evidence. They can weigh it and find it weak or compelling, but they can't ignore it. Obiously the Judge did not bother to look at the evidence or he could not have said that marriage has not changed. But since the majority of judges in the 9th Circuit turned it down for review I am not sure how much he was obligated to look at since there wasn't going to be a hearing.

  • 172. Leo  |  June 5, 2012 at 5:14 pm

    Found it, thanks.

  • 173. DaveP  |  June 5, 2012 at 3:14 pm

    There was a story about this on CNN last night. It's getting lots of coverage!

  • 174. Bob  |  June 5, 2012 at 3:20 pm

  • 175. Bob  |  June 5, 2012 at 3:21 pm

    The primary spirit of the letter is clear – the United States government will assure religious freedom, giving “to bigotry no sanction, to persecution no assistance.”

  • 176. Prop 8 Trial Tracker &raq&hellip  |  June 5, 2012 at 3:40 pm

    […] BREAKING: 9th Circuit DENIES request to re-hear Prop 8 case […]

  • 177. Lodi Gal  |  June 5, 2012 at 3:44 pm

    Can someone please explain the implications of this just breaking news?

    GOP urges court to uphold Defense of Marriage ACT

  • 178. Str8Grandmother  |  June 5, 2012 at 3:49 pm

    Lodi, That is the Golinski Case. Another Challenge to DOMA. I'm kinda tired at the moment but I think Golinski is being Appealed to the 9th Circuit. I would have to think back on this one, this one has been around for a long time. It's been back and forth a couple of times to the Appeals Court if I remember right. The latest if I remember right, and I could be wrong, is that she, Golinski won, in the lower court the District Court and now Blag is appealing.

  • 179. fRaNkLiN  |  June 5, 2012 at 7:01 pm

    House Republicans are now defending DOMA. Golinski is a court employee that sued to have her wife added to he health insurance. This case is a year or so behind the Prop 8 case.

  • 180. Don in Texas  |  June 5, 2012 at 3:45 pm

    Does anyone know if the question of the constitutionality of the ballot initiative/referendum has ever been addressed?

    It could be argued that the "direct democracy" inherent in ballot initiatives and/or referendums violates the republican form of government guaranteed by Section 4, Article IV of the Constitution.

  • 181. Bill S.  |  June 5, 2012 at 5:37 pm

    The Supreme Court has already ruled, in Luther v. Borden, 48 U.S. 1 (1849), that compliance with the Guarantee Clause is a political question and thus non-justiciable. It is the responsibility of Congress and the President to enforce it.

  • 182. MightyAcorn  |  June 6, 2012 at 11:38 am

    Except for the Citizen's United decision, of course. 🙂

  • 183. Pal  |  June 5, 2012 at 4:03 pm

    I sure hope it does not reach SCOTUS. I just don't believe that they would rule in favor of equality. This could put an end to equality once and for all. Yeah, I am scared shitless. Thoughts? This could be REALLY bad.

  • 184. Rich  |  June 5, 2012 at 4:28 pm

    Wrong Pal, I have no worries in this case. If you followed the timeline of this case from Judge Walker to today's decision, you would know that there never was a case in support of Prop 8. You will find that SCOTUS knows and determines that there is no, absolutely no justification for denying gay citizens a civil right to marriage.

  • 185. Robin  |  June 5, 2012 at 5:59 pm

    "If you followed the timeline of this case from Judge Walker to today's decision, you would know that there never was a case in support of Prop 8."

    From that particular cutoff point, true, but the CA State Supreme Court ruled in favor of Prop 8 before that, so it's not true that no case has ever been decided in support of Prop 8.

    "You will find that SCOTUS knows and determines that there is no, absolutely no justification for denying gay citizens a civil right to marriage."

    One third of SCOTUS believes that there is justification for denying gay citizens the right to have consensual adult sex in the privacy of their own homes. Just because something is the right thing to do doesn't mean SCOTUS will do it. I think we may have a reasonable shot, but advising people not to worry at all is misleadingly overconfident, in my opinion.

  • 186. Matt  |  June 5, 2012 at 6:20 pm

    True, Robin. But that was 10 years ago (Lawrence). I'm skeptical if the vote would be the same today. Certainly public opinion has shifted around 30 points (15% have switched position) since then.

    The court is fairly concerned with their image and legacy, at least that's what I'm counting on.

  • 187. fRaNkLiN  |  June 5, 2012 at 6:58 pm

    The State Supreme Court ruled that the change to the Constitution followed the requirements of the Constitution. They were not presented with an argument that the proposition was unconstitutional under the equal protection clause of the FEDERAL constitution. Since they weren't presented with that argument, they never made a ruling regarding it. So no, the California Supreme Court did not "rule in favor of Prop 8"

  • 188. Matt  |  June 5, 2012 at 5:07 pm

    As Rich says, I wouldn't worry. The Supreme Court sees the direction of public opinion. In 10 years, there will be 60%-70% support for same-sex marriage nationally.

    The court already looks bad on gay rights due to what happened with Bowers (overturned a mere 15 years later). I highly doubt they want a second gay rights case that ends up being overturned a short time later. Even our opponents admit that in 10-20 years they will have little public support.

    The worst the court will do is try to slow things down (with narrow rulings like the 9th circuit's in the Prop8 case), but eventually they will have to pick a side and they surely will not pick the losing side…

  • 189. MightyAcorn  |  June 6, 2012 at 11:37 am

    Matt, you're more optimistic than I am about the Supremes making a rational choice not to bollocks protections for LGBTs. Ideologues will vote their regressive party line because they *know* they are right, no matter what anyone says (and because they also know they will throw a wrench in social progress.) Look what happened yesterday with the paycheck equality for women vote….you think public opinion doesn't support equal pay for equal work? They didn't care.

    Scalia and his cohorts will vote to oppress gays until the day he croaks and his slimy black corrupt soul burns a smoldering pit in the earth's crust as it rockets down to Hell. And you can quote me, please.

  • 190. Non-Election News Item &#&hellip  |  June 5, 2012 at 4:14 pm

    […] The Ninth Circuit denied rehearing on the Prop 8 overturn.  This means that if SCOTUS denies cert, marriage equality is restored in California. Like this:LikeBe the first to like this post. […]

  • 191. NEWSFLASH: Another Marria&hellip  |  June 5, 2012 at 4:16 pm

    […] this legal hurdle has been cleared, the Prop 8 case will most likely head to the Supreme Court. The Prop 8 Trial Tracker spells out what will happen next: The proponents have 90 days to file a petition […]

  • 192. Prop 8 Trial Tracker &raq&hellip  |  June 6, 2012 at 10:42 am

    […] BREAKING: 9th Circuit DENIES request to re-hear Prop 8 case […]

  • 193. grayson  |  June 12, 2012 at 6:51 am

    “It is a political statement and reads very much like a NOM press release.” – Nice to know that only politically correct lemmings are allowed to have an opinion on this matter that would silence the voice of the voting public. If you don’t get what you want after a vote then that usually means the state doesn’t want what’s being shoved at it. I guess being gay in 2012 means you only get Your way. To bad this tactic doesn’t work on ineffective democratic presidents that know how to spend other people’s money and nothing more.

  • 194. UPDATED: Prop 8 Case Will&hellip  |  June 18, 2012 at 5:54 am

    […] Thomaston, writing at Courage Campaign’s Prop 8 Trial Tracker, notes: It’s likely that Justices at the Supreme Court would have their conference to take up the […]

  • 195. Critical Mass Progress | &hellip  |  August 7, 2012 at 8:21 am

    […] Ninth Circuit Court of Appeals declined to rehear the case en banc on June 5 after it struck down Proposition 8 and that set the case up for review by the […]

  • 196. What to expect in the com&hellip  |  November 15, 2012 at 3:11 pm

    […] Schwarzenegger). Two federal courts—a U.S. district court and the 9th Circuit Court of Appeals—determined that Proposition 8 violates the U.S. Constitution. While Supreme Court experts generally agree that the Court will likely rule on the […]

  • 197. Same-sex couples & th&hellip  |  November 15, 2012 at 5:41 pm

    […] Schwarzenegger). Two federal courts—a U.S. district court and the 9th Circuit Court of Appeals—determined that Proposition 8 violates the U.S. Constitution. While Supreme Court experts generally agree that the Court will likely rule on the […]

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