Kristin Perry, et al v. Arnold Schwarzenegger, et al

Filing 425

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. [8202067] [10-16696, 11-16577] (RP)

FILED
Perry v. Brown, Nos. 10-16696, 11-16577

JUN 05 2012
MOLLY C. DWYER, CLERK

U rehearing
REINHARDT and HAWKINS, Circuit Judges, concurring in the denial of .S. C O U R T OF APPE ALS
en banc:

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.