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Ninth Circuit Denies Rehearing of Prop 8 Case

The Ninth Circuit denies the proponents’ request to rehear the Prop 8 case, making the 3-judge panel’s opinion the last word on the matter at the circuit court level.

In the June 5 ruling, the original three-judge panel that heard the appeal of Judge Walker’s decision votes 2-1 along the same lines as the original appellate decision, with Judges Reinhardt and Hawkins voting to deny a rehearing and Judge Smith voting in favor of it.  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), writes a dissent, joined by Judges Bybee and Bea, explaining why he supported the rehearing.

In his dissent, Judge O’Scannlain writes, “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.”

Judges Reinhardt and Hawkins, the two judges on the original panel that struck down Prop 8, file a response to Judge O’Scannlain’s dissent, saying, “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.”

With the Prop 8 case complete at the circuit court level, the proponents’ remaining option is to file a petition for a writ of certiorari with the Supreme Court within 90 days, asking the high court to review the lower courts’ rulings.  After the en banc rehearing decision is announced, the proponents vow to take the case to the Supreme Court.

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