The opinion
FILED
FOR PUBLICATION JUN 05 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KRISTIN M. PERRY; SANDRA B. No. 10-16696
STIER; PAUL T. KATAMI; JEFFREY J.
ZARRILLO, D.C. No. 3:09-cv-02292-VRW
Plaintiffs - Appellees,
ORDER
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,
HAK-SHING WILLIAM TAM,
Intervenor-Defendant,
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.
KRISTIN M. PERRY; SANDRA B. No. 11-16577
STIER; PAUL T. KATAMI; JEFFREY J.
ZARRILLO, D.C. No. 3:09-cv-02292-JW
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,
HAK-SHING WILLIAM TAM,
Intervenor-Defendant,
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.
Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.
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.
-4-
FILED
Perry v. Brown, 10-16696; 11-16577 JUN 05 2012
MOLLY C. DWYER, CLERK
O’SCANNLAIN, Circuit Judge, joined by BYBEE and BEA, Circuit Judges, O U R T OF APPE ALS
U .S. C
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 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
1
Interview by Robin Roberts, ABC News, with Barack Obama, President of
the United States, in Washington, D.C. (May 9, 2012).
1
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.
2
FILED
Perry v. Brown, Nos. 10-16696, 11-16577 JUN 05 2012
MOLLY C. DWYER, CLERK
REINHARDT and HAWKINS, Circuit Judges, concurring in the denial of .S. C O U R T OF APPE ALS
U rehearing
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.