In a somewhat anticlimactic ruling, the 9th Circuit U.S. Court of Appeals on Friday rejected motions for an en banc review – a reconsideration by a larger, 11-judge panel – of the October ruling overturning bans on same-sex marriage in Idaho and Nevada. Idaho already had appealed to the U.S. Supreme Court, saying the motion for reconsideration apparently wasn’t going to be granted; Idaho Gov. Butch Otter had requested it Oct. 21, but more than two months went by without any action.
Friday’s order said only, “The panel has voted to deny the petitions for rehearing en banc. The full court was advised of the petitions 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 reconsideration. The petitions for rehearing en banc are denied.”
9th Circuit Judge Diarmuid O’Scannlain of Portland, joined by Judges Johnnie B. Rawlinson of Las Vegas and Carlos Bea of San Francisco, penned a dissent, saying the en banc review should have been granted, noting that the 6th Circuit recently ruled against same-sex marriage.
“Thoughtful, dedicated jurists who strive to reach the correct outcome—including my colleagues on the panel here—have considered this issue and arrived at contrary results,” O’Scannlain wrote. “This makes clear that—regardless of one’s opinion on the merits of the politically charged and controversial issues raised by these cases—we are presented with a ‘question of exceptional importance’ that should have been reviewed by an en banc panel.” He further argued that a 1972 one-sentence ruling in a Minnesota case, Baker v. Nelson, still should be considered precedent on the marriage question; it found no federal question to be decided in a case where two men sued for the right to marry.
You can read the order and dissent here; the dissent also argued that states should be able to decide the marriage issue for themselves. The 9th Circuit has 29 judgeships; it’s so large that in the 9th Circuit, an en banc review involves an 11-judge panel, rather than convening the entire court, as in other circuits.