Ninth Circuit Declines En Banc Review Of Proposition 8 Decision

The case against Proposition 8 is headed to the Supreme Court.

Back in February a three judge panel of the Ninth Circuit Court of Appeals sustained a lower court ruling finding California’s Proposition 8, which reversed a previous California Supreme Court decision declaring a right to same-sex marriage, to be unconstitutional. The proponents of Proposition 8 responded by requesting reargument of the case before all twenty-six members of the Ninth Circuit, a move that would have delayed any chance the case would reach the Supreme Court by at least a year. Today, the Ninth Circuit denied the request for an en banc hearing, thus setting in motion the possibility that this case will end up before the Supreme Court in its 2012-2013 Term:

SAN FRANCISCO (AP) — A federal appeals court refused Tuesday to reconsider a landmark ruling by two of its member judges that struck down California’s ban on same-sex marriages.

Backers of the ban, known asProposition 8, petitioned the full 9th U.S. Circuit Court of Appeals in February to review the decision instead of appealing directly to the U.S. Supreme Court.

Gay marriage opponents said at the time they would go to the high court if the appeals court declined to rehear the case. They have 90 days to do so.

Same sex unions were briefly legal in California before voters passed Proposition 8 in November 2008. Due to the ongoing legal wrangling, it’s unlikely the practice will resume in the state anytime soon.

The 9th Circuit said a majority of its 26 actively serving judges had voted not to revisit a three-judge panel’s 2-1 decision declaring the voter-approved ban to be a violation of the civil rights of gays and lesbians in California.

The 9th Circuit does not often agree to rehear cases, a procedure known as en banc review. Federal court rules reserve the practice for appeals that involve “a question of exceptional importance” or if the original decision appears to conflict with Supreme Court or 9th Circuit precedents.

In denying review, the Court stated it would keep the current injunction barring the ruling from going into effect active for at least 90 days to give the proponents of Prop. 8 time to decided if they wish to appeal the case to the Supreme Court. If the case is so appealed, then the injunction will remain in effect until the Supreme Court has ruled on the matter. Immediately after the judgment was issued today, though, the attorney for the proponents said that they would be filing for review by the Supreme Court.

Here’s a PDF of today’s order from the Court. There was a dissenting opinion filed by three judges (Judges O’Scannlain, Bybee, and Bea) which  said:

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.”

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

A fourth judge also apparently voted in favor of granting a hearing, but declined to sign the dissenting opinion.

This means that there are now two same-sex marriage cases likely headed to the Supreme Court. In addition to this case, we also have the decision issued last month by a three judge panel of the First Circuit Court of Appeals holding Section Three of the Defense of Marriage Act to be unconstitutional. It’s quite likely that the Court will take the second case since it involves a direct challenge to a Federal Law. As to the Prop. 8 case, there is a possibility that the Court could decline to take the case but, in the end, it seems unlikely that there would not be at least four justices willing to hear a case of such national importance. Between these cases and the affirmative action in college admissions cases that the Court recently accepted, the Court’s next term is already shaping up to be just as interesting as this one has been.

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Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. al-Ameda says:

    I’m glad it appears that it’s on the way to a Supreme Court hearing.

    My guess is that the Supreme Court will let the states continue to prohibit gay marriage. This is a case that let’s the court dodge equal protection and support a state’s rights position. God forbid that this conservative court would be an “activist” court when it comes to individual rights and equal protection for people rather than for, say, corporations.