The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN M. PERRY; SANDRA B.
STIER; PAUL T. KATAMI; JEFFREY J.
ZARRILLO,
Plaintiffs-Appellees,
CITY AND COUNTY OF SAN
FRANCISCO,
Intervenor-Plaintiff-Appellee,
v.
EDMUND G. BROWN, Jr., in his
official capacity as Governor of
California; KAMALA D. HARRIS, in
her official capacity as Attorney
General of California; MARK B.
HORTON, in his official capacity as
Director of the California
Department of Public Health &
State Registrar of Vital Statistics;
LINETTE SCOTT, in her official
capacity as Deputy Director of
Health Information & Strategic
Planning for the California
Department of Public Health;
PATRICK O’CONNELL, in his official
capacity as Clerk-Recorder for the
County of Alameda; DEAN C.
LOGAN, in his official capacity as
Registrar-Recorder/County Clerk
for the County of Los Angeles,
Defendants,
6569
6570 PERRY v. BROWN
HAK-SHING WILLIAM TAM,
Intervenor-Defendant,
and
DENNIS HOLLINGSWORTH; GAIL J. No. 10-16696
KNIGHT; MARTIN F. GUTIERREZ;
MARK A. JANSSON; D.C. No.
3:09-cv-02292-
PROTECTMARRIAGE.COM-YES ON 8, VRW
A PROJECT OF CALIFORNIA RENEWAL,
as official proponents of
Proposition 8,
Intervenor-Defendants-Appellants.
KRISTIN M. PERRY; SANDRA B.
STIER; PAUL T. KATAMI; JEFFREY J.
ZARRILLO,
Plaintiffs-Appellees,
CITY AND COUNTY OF SAN
FRANCISCO,
Intervenor-Plaintiff-Appellee,
v.
EDMUND G. BROWN, Jr., in his
official capacity as Governor of
California; KAMALA D. HARRIS, in
her official capacity as Attorney
General of California; MARK B.
HORTON, in his official capacity as
Director of the California
Department of Public Health &
State Registrar of Vital Statistics;
PERRY v. BROWN 6571
LINETTE SCOTT, in her official
capacity as Deputy Director of
Health Information & Strategic
Planning for the California
Department of Public Health;
PATRICK O’CONNELL, in his official
capacity as Clerk-Recorder for the
County of Alameda; DEAN C.
LOGAN, in his official capacity as
Registrar-Recorder/County Clerk
for the County of Los Angeles, No. 11-16577
HAK-SHING WILLIAM TAM,
Defendants,
D.C. No.
3:09-cv-02292-JW
Intervenor-Defendant, ORDER
and
DENNIS HOLLINGSWORTH; GAIL J.
KNIGHT; MARTIN F. GUTIERREZ;
MARK A. JANSSON;
PROTECTMARRIAGE.COM-YES ON 8,
A PROJECT OF CALIFORNIA RENEWAL,
as official proponents of
Proposition 8,
Intervenor-Defendants-Appellants.
Filed June 5, 2012
Before: Stephen Reinhardt, Michael Daly Hawkins, and
N. Randy Smith, Circuit Judges.
Order;
Concurrence by Judge Reinhardt;
Dissent by Judge O’Scannlain
6572 PERRY v. BROWN
ORDER
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 mat-
ter 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.
REINHARDT and HAWKINS, Circuit Judges, concurring in
the denial of rehearing en banc:
We are puzzled by our dissenting colleagues’ unusual reli-
ance 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.
PERRY v. BROWN 6573
O’SCANNLAIN, Circuit Judge, joined by BYBEE and BEA,
Circuit Judges, 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 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.”1
Today our court has silenced any such respectful conversa-
tion. 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 defini-
tion 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 Proposi-
tion 8 voters based on a reading of Romer that would be
unrecognizable to the Justices who joined it, to those who dis-
sented 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.
1
Interview by Robin Roberts, ABC News, with Barack Obama, Presi-
dent of the United States, in Washington, D.C. (May 9, 2012).
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