June 5, 2012

"The Ninth Circuit U.S. Court of Appeals on Tuesday declined to rehear arguments over California's ban on gay marriage..."

"... which the court invalidated in February. The decision sends the case on a trajectory to the U.S. Supreme Court."

There were 3 dissenting votes on an "en banc" panel of 11 judges. Here's a PDF of today's order.  The dissenting opinion, from O'Scannlain, Bybee, and Bea 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

57 comments:

chickelit said...

So I guess it's time to start prepping those litmus test questions for future SCOTUS nominees?

David said...

But you just can't trust those voters. They really should have no voice. Let the judges decide.

Donald Douglas said...

Thanks Ann. I've got you linked up: '9th Circuit Rejects Proposition 8 Appeal (VIDEO)".

traditionalguy said...

The Justices in California's Ninth need a round in the Octagon complete with choke holds ("the Prosser") and self defense heart shots ( the "Zimmerman").

Add in some local Hollywood special effects and the famous ticking 30 second self-destruct switch from Dr No's Island and we would care.

But Wisconsin has the Ninth beat today for Best Drama and Film Editing.

sunsong said...

some people are gay - get over it

BarryD said...

IIRC the issue was whether 50% + 1 of the vote was sufficient to amend the State Constitution WRT a prohibition on individual rights.

The argument wasn't about gay marriage, really, and while many people didn't like the result, the ruling itself would not have been particularly controversial had the proposition not involved a hot-button issue for so many.

Andy R. said...

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

!

traditionalguy said...

Certiorari here we come. May the best briefs win, whether tighty whities or boxers.

At this rate the SCOTUS will be worn out. Maybe a couple of retirements and two Mormons appointed in their place will create the best dramatic TV since Escape from Clarence Thomas Island.

David said...

Gays--the other 1%. Or 2% or whatever.

Andy R. said...

Gays--the other 1%.

You're going to keep hearing from us until we get equality in all 50 states.

If the bigots want all of the attention on queer issues to go away, they can just give up.

Indigo Red said...

Most people are straight - get over it.

traditionalguy said...

Andy...But what if Mormons wont give up?

Will we need to shoot Mormons on sight?

Or will cutting out their tongues be enough?

Well, there's always the EPA's oldie but goodie method of a few crucifictions of the innocent to get the bigots attention.

You might want to re-think starting a war. The straights wil outnumber you if you arouse them the wrong way.

kcom said...

Hawk update: One of them was trying to walk along the edge of the nest and when it shifted he lost his footing and he disappeared from view. I assume he was able to glide successfully somewhere but the launch definitely didn't look intentional.

chickelit said...

Andy R exclaimed: You're going to keep hearing from us until we get equality in all 50 states.

NOW you're starting to sound more like an ERA advocate than a civil rights advocate.

Synova said...

Seeing as the Mormons were persecuted and hounded (and I do believe there was violence involved in it all) because of MARRIAGE, primarily, the notion that Mormons are going to suddenly decide that it's a matter of constitutional "rights" and protections is slim to none.

How could a thinking person expect any different considering their history?

Tim said...

"Almost all people are straight - get over it."

Fixed.

Andy R. said...

But what if Mormons wont give up?

It's not going to be hard to convince people to side with the gays over the Mormons when it comes to equality.

If the Mormons want to hang around and keep preaching their bigotry, they are welcome to do so.

Tim said...

"It's not going to be hard to convince people to side with the gays over the Mormons when it comes to equality."

So far, the evidence conclusively states it is hard to convince people to side with the gays over the Mormons.

After all, everyone knows it was Obama voters who put Proposition 8 overwhelmingly over the top in California.

Synova said...

In the case of Mormons and polygamy, the Constitution is actually, and clearly, on the side of proactively protecting religious belief.

In fact, the Mormons had a case at all.

Gays don't on this. Sorry, Andy. But the notion of "equality" in this ignores that some people are apparently equal and other people are clearly not, and this is why SSM advocates never stop explaining that SSM will not, CAN not, end up opening everyone else to that "equality."

All there is, is some nebulous interpretation of a later amendment to the constitution that has to be said to imply no limitations on marriage contracts... which there either *are* or there are *not*, no? Try to explain why *other* limitations are legitimate, then.

The Mormons, on the other hand, had the weight of the 1st Amendment, and they lost. Apparently "one man, one woman" was so compelling that it trumped the first iterated "Right" in the Bill of Rights.

Mr. D said...

Gay marriage doesn't worry me particularly -- I assume we'll have it soon enough. Federal judges who think they can strike down portions of a state constitution worry me rather a lot, though.

Synova said...

See, because Andy thinks it's all because of religious bigotry.

It can't because a people group look at the claim that it's a matter of Rights and see whiny children having a fight their church had a century ago, with far more basis, and no success.

Make the argument!

If the legal definition of marriage is changed by asserting that the constitution prohibits rules over who can marry, explain why that prohibition doesn't apply to all restrictions instead of just your pet one.

If restrictions are legitimate, then the definition of civil marriage can be changed by passing laws with popular support that retain some restrictions while removing others.

Michael K said...

"Andy R exclaimed: You're going to keep hearing from us until we get equality in all 50 states."

The gay marriage issue is an anomaly related to the AIDS epidemic. There was panic over the matter of promiscuity. Gays got interested in marriage as a way to try to change the male tendency for promiscuity. It hasn't really affected it. When AIDS fades away, like syphilis did centuries ago, the interest in gay marriage will fade. I don't really care but see no reason to turn human history upside down for a small fraction of the population. It has nothing to do with civil rights.

Patrick said...

Andy: It's not going to be hard to convince people to side with the gays over the Mormons when it comes to equality.

Actually, if everyone tries to convince people like you, it will be well nigh impossible. Calling people "bigots" is not an argument. Making fun of religion is not persuasive. Even though I favor gay marriage, every time you write, I feel like reversing myself.

You'd have a better chance if you would shut up.

edutcher said...
This comment has been removed by the author.
Lyssa said...

Even though I favor gay marriage, every time you write, I feel like reversing myself.

This. I favor gay marriage as well, but I very, very often find myself embarassed both for and by other supporters.

There are some good policy arguments, and even fairness arguments, for gay marriage. I have no idea why so many supporters prefer to come across like whiney children.

edutcher said...

How often does 9th Circus get overturned again?

Andy R. said...

Gays--the other 1%.

You're going to keep hearing from us until we get equality in all 50 states.


You have it, sweetie, guaranteed by the Constitution.

What you want is special privilege and that you won't get.

If the bigots want all of the attention on queer issues to go away, they can just give up.

No, just wait for the Romster to be elected.

Queer issues came out when Willie was POTUS and went away when he finally was out.

Same here.

el polacko said...

if this is what "silencing the conversation" sounds like, i'd hate to hear things get talky. this subject has been discussed to death and every law attempting to restrict gay citizens from marriage equality that has been challenged in the courts has been struck down as unconstitutional. how much more 'conversation' is necessary ?

Dave said...

Andy, support for gay marriage will likely hurt Obama this fall. Tell me how inevitable it is again?

Matthew Sablan said...

Andy, for the rest of the people who want same sex marriage to become a legal reality in this country: Please, shut up. You're not helping.

chickelit said...

el polacko opined: how much more 'conversation' is necessary ?

I guess you don't buy how the hierarchy of courts work in the U.S. or what?

chickelit said...

@el polacko: I mean, the mechanism for resolution of such issues is issue-independent.

Embrace it.

I Callahan said...

I guess you don't buy how the hierarchy of courts work in the U.S. or what?

The science is settled, so we need to just shut up. Or something.

I Callahan said...

Please, shut up. You're not helping.

Actually, he is. The gay mafia have used this exact tactic since the beginning of this fight, and it's gotten them this far. Why should they shut up? At least when they do spew this BS, they're being honest.

I'm sorry the truth about how militant gays feel is uncomfortable for some people.

Matthew Sablan said...

I'm pretty sure the people arguing in front of the courts for these cases aren't just calling the justices bigoted sky fairy worshippers.

Quayle said...

For Andy's sake, let's revisit the Mormon Church's official statement on homosexuality, and see if he can point to the hateful parts:

"While we disagree with the Human Rights Campaign on many fundamentals, we also share some common ground. This past week we have all witnessed tragic deaths across the country as a result of bullying or intimidation of gay young men. We join our voice with others in unreserved condemnation of acts of cruelty or attempts to belittle or mock any group or individual that is different – whether those differences arise from race, religion, mental challenges, social status, sexual orientation or for any other reason. Such actions simply have no place in our society."

"This Church has felt the bitter sting of persecution and marginalization early in our history, when we were too few in numbers to adequately protect ourselves and when society’s leaders often seemed disinclined to help. Our parents, young adults, teens and children should therefore, of all people, be especially sensitive to the vulnerable in society and be willing to speak out against bullying or intimidation whenever it occurs, including unkindness toward those who are attracted to others of the same sex. This is particularly so in our own Latter-day Saint congregations. Each Latter-day Saint family and individual should carefully consider whether their attitudes and actions toward others properly reflect Jesus Christ’s second great commandment - to love one another."

"As a church, our doctrinal position is clear: any sexual activity outside of marriage is wrong, and we define marriage as between a man and a woman. However, that should never, ever be used as justification for unkindness. Jesus Christ, whom we follow, was clear in His condemnation of sexual immorality, but never cruel. His interest was always to lift the individual, never to tear down."

"Further, while the Church is strongly on the record as opposing same-sex marriage, it has openly supported other rights for gays and lesbians such as protections in housing or employment."

"The Church’s doctrine is based on love. We believe that our purpose in life is to learn, grow and develop, and that God’s unreserved love enables each of us to reach our potential. None of us is limited by our feelings or inclinations. Ultimately, we are free to act for ourselves."

Quayle said...

And here are the closing paragraphs, again for Andy's consumption and criticism:

"Obviously, some will disagree with us. We hope that any disagreement will be based on a full understanding of our position and not on distortion or selective interpretation. The Church will continue to speak out to ensure its position is accurately understood."

"God’s universal fatherhood and love charges each of us with an innate and reverent acknowledgement of our shared human dignity. We are to love one another. We are to treat each other with respect as brothers and sisters and fellow children of God, no matter how much we may differ from one another."

Patrick said...

Boy, Quayle, you Mormons sure are a hateful bunch.

BarryD said...

"we define marriage as between a man and a woman"

Note that they didn't say "one man and one woman".

Rusty said...

Andy R. said...
Gays--the other 1%.

You're going to keep hearing from us until we get equality in all 50 states.

If the bigots want all of the attention on queer issues to go away, they can just give up.


I'm all for it if only you just go away. You could drain the joy out of a Cubs pennant win.

Andy R. said...

Mormons think that gay people are undeserving of sexuality. They think gay people should be single and celibate their entire lives.

If a church put out a statement saying that black people should not have sex, would that be bigotry?

Matthew Sablan said...

"we define marriage as between a man and a woman"

Note that they didn't say "one man and one woman".

--> A man implies a single man. If I say "a man attacked me," you know it was a single attacker. "A man sat a bar" is one man at a bar.

Lyssa said...

You know, I don't agree with the Mormon Church on a lot of issues, but the more I hear from people who represent them, the more I like them.

Matthew Sablan said...

Andy: Most religions think that if people aren't married, they shouldn't have sex. No matter any other defining characteristic. Chastity is a virtue, after all.

Scott M said...

Note that they didn't say "one man and one woman".

Nice catch and hysterical to boot. Well done. I've never heard Andy's take on polygamy, while we're tacitly on the subject.

WV - by the by, I've noticed the picture is completely unecessary and only the word will make the system accept the post.

Nathan Alexander said...


If a church put out a statement saying that black people should not have sex, would that be bigotry?


It is unfair and wrong to treat people differently on the basis of appearance alone, in complete disregard to how they behave.

It is perfectly rational and appropriate to treat someone differently on the basis behavior alone, in complete disregard to how they look.

Treating people on the basis of voluntary behavior is the basis of civilization.

Why do you want to overthrow civilization?

And I really want to know: why are you pushing so hard to reject Martin Luther King, Jr.'s principle in his "I Have a Dream" speech?

BarryD said...

'A man implies a single man. If I say "a man attacked me," you know it was a single attacker. "A man sat a bar" is one man at a bar.'

That's true but irrelevant to your assertion.

"Marriage" cannot be assumed to exclude other marriages.

Being attacked by a man at a bar does not preclude your subsequently being attacked by another man, then another man, and then another.

Patrick said...

Barry said: Note that they didn't say "one man and one woman

The definite article speaks for itself. Mormons dumped polygamy a long time ago, as you likely know.

Matthew Sablan said...

That's the beauty of between instead of among.

Rocketeer said...

If a church put out a statement saying that black people should not have sex, would that be bigotry?

Yes, because "being black" is immutable, and apparent.

paul a'barge said...

Amend the US Constitution. Define marriage as a union between one man and one woman.

Do it now.

BarryD said...

"That's the beauty of between instead of among."

Wrong again.

If my purchase of a cup of coffee involves a tacit agreement between Starbucks and me, that does not preclude my purchasing another cup tomorrow.

Quayle said...

Note that they didn't say "one man and one woman".

You're right.

Given our history, and its implication that God at His sole discretion can and does occasionally permit polygamy (see e.g. Abraham, Jacob, etc.), the statement really couldn't be otherwise.

edutcher said...

Andy R. said...

Mormons think that gay people are undeserving of sexuality. They think gay people should be single and celibate their entire lives.

If a church put out a statement saying that black people should not have sex, would that be bigotry?


Don't ever go into a black neighborhood and say something that dumb.

Black people have boy-girl sex like everybody else.

Homosexual sex is a profanation of not only God's will, but evolution (if you buy that stuff).

Besides, the Catholic Church also says it's OK to be homosexual as long as you don't have homosexual sex .

Before Hatman says anything, he ought to remember that Zero's troubles began about the time he picked a fight with the One True Church.

There's two groups you don't mess with: The Church and God's Chosen People. He's gone after both.

And God is keeping score.

Synova said...

"If a church put out a statement saying that black people should not have sex, would that be bigotry?"

Yes.

And also, irrelevant.

It's not a question of "is this bigotry" it's a question of "is this a freedom (to be a bigot) guaranteed by the constitution."

In any case, the Mormons did not have a more restrictive understanding of marriage than public sentiment would allow, it had a far FAR more expansive understanding of marriage. Certainly a mormon fellow could have only one wife, but church doctrine was that polygamy was proper (or even somewhat required, by some accounts.)

That more expansive definition of marriage, even based on a clear doctrinal conviction (rather than a simple "but I want to,") should have been upheld by the first amendment without hardly a second thought.

It wasn't.

The precedent set puts a pretty kibosh to the notion that *even* a clear Constitutional basis is enough to win the day over whatever necessity to limit marriage exists.

And Mormons even had that clear Constitutional basis where gays do not.

Either argument... "equal rights" or "hey, you're a bigot" are unlikely to win favor from people who had to flee to the armpit of UTAH to escape persecution and then were forced to abandon an important part of their constitutionally guaranteed religious freedom in the end.

(By many accounts institutionalized polygamy is incredibly BAD, for the girls and absolutely for the boys. I'm not making arguments about if it's a healthy social construct or not.)

Andy R. said...

Black people have boy-girl sex like everybody else.


o_O

dbp said...

In a democracy, shouldn't the people have a say in redefining what is a fundamental part of our civilization?

Or maybe we should leave it up to our betters to determine what marriage is and how large a soda we should be allowed to consume. Maybe they can redefine citizen to something more suitable, like subject.

edutcher said...

Andy R. said...

Black people have boy-girl sex like everybody else.

o_O


Not sure what that's supposed to mean, but I think Hatman's saying he likes it better in the backdoor.