Kristin Perry, et al v. Arnold Schwarzenegger, et al
Filed Order for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) (Dissent by Judge O'Scannlain, Concurrence by Judge Reinhardt) A majority of the panel has voted to deny the petition for rehearing en banc.
Judge N.R. Smith would grant the petition. The full court was advised of the petition for rehearing en banc. A judge
requested a vote on whether to rehear the matter en banc. The matter failed to receive
a majority of the votes of the non-recused active judges in favor of en banc
consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED.
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.  [10-16696, 11-16577] (RP)
JUN 05 2012
Perry v. Brown, 10-16696; 11-16577
MOLLY C. DWYER, CLERK
U .S. C
O’SCANNLAIN, Circuit Judge, joined by BYBEE and BEA, Circuit Judges, O U R T OF APPE ALS
dissenting from the order denying rehearing en banc:
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 samesex 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
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
Interview by Robin Roberts, ABC News, with Barack Obama, President of
the United States, in Washington, D.C. (May 9, 2012).
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.
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