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.