It will be exciting to have this argued at the U.S. Supreme Court. First report in from Chris Geidner at MetroWeekly:
The federal appeals court hearing the challenge to Proposition 8 passed on taking another look at the ruling, sending the case to an 11-judge panel and delaying a final ruling on the case for upwards of a year.
The decision today by the U.S. Court of Appeals for the Ninth Circuit not to reconsider the appeal, in which a three-judge panel had found the amendment to be unconstitutional in February, starts a 90-day clock for the proponents to decide whether they will ask the Supreme Court to hear the case. “A majority of the panel has voted to deny the petition for rehearing en banc,” the court wrote.
Here is the announcement text:
United States Court of Appeals for the Ninth Circuit
Notice of Docket Activity
The following transaction was entered on 06/05/2012 at 9:47:26 AM PDT and filed on 06/05/2012Case Name: Kristin Perry, et al v. Edmund G. Brown, Jr., et alCase Number: 10-16696Document(s): Document(s)
Docket Text: 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)
Judge O’Scannlain has filed a dissent from the denial of en bancrehearing joined by Judges Bybee and Bea, and in it he discusses his belief that Judge Smith’s dissent was correct. He says that “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.”
…No one is certain if the Supreme Court would grant review of the case as it currently stands. Judge Reinhardt’s opinion for the three-judge Ninth Circuit panel is very narrow and the holding is specific to California’s unique legal circumstances. A denial of rehearing in this case leaves the decision California-specific and there may not be four Justices – the number needed to grant certiorari – who want to visit an issue that’s so limited in scope. On the other hand, the panel’s decision did strike down an amendment to a constitution of an enormous state involving a contentious issue. And allowing gay couples to marry in California would nearly double the amount of people in the United States who live in an area that allows same-sex marriage.
American Foundation for Equal Rights (AFER) is the sole sponsor of Perry v. Brown, the federal constitutional challenge to California’s Proposition 8. Co-founder Chad Griffin:
“Today’s order is yet another federal court victory for loving, committed gay and lesbian couples in California and around the nation. The final chapter of the Proposition 8 case has now begun. Should the United States Supreme Court decide to review the Ninth Circuit’s decision in our case, I am confident that the Justices will stand on the side of fairness and equality.”
Other reactions are below the fold.
Human Rights Campaign President Joe Solmonese:
“Once again, a federal court has affirmed that the cherished guarantees of our Constitution are there to protect all Americans – including lesbian, gay, bisexual and transgender people. For over three years, the plaintiffs, the American Foundation for Equal Rights, and attorneys Ted Olson and David Boies have shown tremendous fortitude and perseverance in their fight for marriage equality. With today’s announcement, we are one step closer to ensuring that gay and lesbian Californians – and, one day, our entire community nationwide – are able to join the institution of marriage and have their love and commitment respected equally.
“Today’s announcement is another significant step on a path that we all know leads to equality. While the U.S. Supreme Court may ultimately decide the outcome of this case, we must all continue to walk that path – in this case and other courtrooms, in legislatures, at ballot boxes and at kitchen table – until all LGBT people are fully and equally part of the American community.”
Family Equality Council Executive Director Jennifer Chrisler:
“Today’s decision means we are one significant step closer to ensuring fairness and freedom for all American families. A majority of Americans, President Obama and many of our nation’s elected leaders have changed their hearts and minds to support marriage equality for our families. Now we have renewed hope that the laws and policies of country will change as well. We look forward to the day when our children and grandchildren can be assured of full equality and full protection under the law. “
National Center for Lesbian Rights Executive Director Kate Kendell, Esq.:
“Today’s refusal by the Ninth Circuit to grant further review is a testament to the meticulous and well-reasoned opinion originally issued by the Court. While the supporters of Proposition 8 will now seek review by the U.S. Supreme Court, there is no doubt that they are on the wrong side of history. Excluding same-sex couples from the right to marry runs counter to our highest ideals of equality and fairness.”
Evan Wolfson, founder and President of Freedom to Marry:
“Today’s decision by the Ninth Circuit to deny a rehearing of Perry vs. Brown brings committed same-sex couples in California one step closer to being able to marry. It’s now been three-and-a-half years since the freedom to marry was stripped from from loving and committed same-sex couples. It is long past time for this ‘gay exception’ to marriage in California to come to an end. Freedom to Marry calls on all Americans to join us in continuing to make as strong a case in the court of public opinion as legal advocates are making in the court of law.”
Servicemembers Legal Defense Network (SLDN) Executive Director Aubrey Sarvis:
“Once again, a federal court has affirmed that loving and committed couples should have the right to marry. This historic victory in California today further bolsters SLDN’s case on behalf of married gay and lesbian service members and veterans who are denied equal recognition, support and benefits for their families. With each passing day, we are moving closer to a time when every American – especially those putting their lives on the line to protect our nation – has the freedom to marry the person they love, knowing that their commitment will be recognized and respected by their government,”
Adam Bink, Director of Online Programs, Courage Campaign:
“Today’s decision is another step towards dignity and equality for all citizens. Together, we won when the discriminatory language of California’s Proposition 8 was ruled unconstitutional in Judge Vaughn Walker’s courtroom. We won in front of the three-judge panel from the Ninth Circuit Court of Appeals. And we won today before the full Ninth Circuit.
“Now, there is only one last-ditch option for those who would deny equality to gay and lesbian citizens: an appeal to the U.S. Supreme Court, the biggest stage of all.
“The Courage Campaign has moved and challenged public opinion, mobilized hundreds of thousands of citizens, and brought every hearing, brief and decision from the Prop 8 trial into the homes of millions of Americans.
“A majority of Americans now believe that couples like Ed Watson and Derence Kernek of Palm Springs deserved to have their 40-year relationship recognized. Tragically, Ed – who was 78 and suffering from Alzheimer’s – died before the state of California and the nation recognized his personal liberty and his right to choose his own partner.
“Sadly, today’s good news comes too late for Ed, but millions of other Americans are still urgently waiting for their rights to be recognized. Today, we are one step closer to justice, and the 750,000 members of the Courage Campaign will keep fighting for a better tomorrow.”
James Esseks, director of the ACLU Lesbian Gay Bisexual and Transgender Project:
“While we’re pleased that the court’s initial ruling against this discriminatory policy will stand for now, we know this fight may not be over yet. Hopefully, all families in California will have the freedom to provide and care for each other with the dignity and protection that only marriage can provide.”
California House Speaker John A. Pérez:
“Today’s announcement by the 9th Circuit Court of Appeals is welcome news to people of conscience all over California. The court has confirmed what a growing number of people all over America believe: that dignity, respect and justice require every LGBT person of this country to be treated with the same rights and responsibilities as any other, including with respect to marriage. This is another important milestone on our community’s long march to justice.”