Dissenting Prop. 8 Judge Says Obama Wants Gay Marriage Left Up to the States


As Scott Shackford previously noted, the U.S. Court of Appeals for the 9th Circuit announced today that it will not reconsider its February ruling by a 3-judge panel striking down California's Proposition 8, the controversial voter initiative that amended the state constitution in order to forbid gay marriage. This was not a unanimous decision, however. Four judges voted in dissent, including Ronald Reagan-appointee Judge Diarmuid O'Scannlain, who filed a short, sharply-worded dissent accusing his colleagues of trampling on the principles of federalism. But what's even more notable is that O'Scannlain cited none other than President Barack Obama to back up this claim:

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."

Today our court has silenced any such respectful conversation…. 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 trumped California's democratic process without at least discussing this unparalleled decision as an en banc court.  

Romer refers to Romer v. Evans, the 1996 Supreme Court decision written by Justice Anthony Kennedy striking down a Colorado constitutional amendment that had forbidden state officials from taking any action designed to protect gays and lesbians from discrimination. In the February opinion that the 9th Circuit let stand today, Judge Stephen Reinhardt repeatedly cited Romer in support of his arguments against Prop. 8, essentially telling Kennedy and the other justices that he wasn't striking out in any new direction, but was instead just applying a settled precedent. O'Scannlain's dissent today is a none-too-subtle attempt to call that approach into question, and to also encourage the Supreme Court to reject Reinhardt's interpretation.