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Idaho Gay Marriage Case Denied En Banc Rehearing, With Dissent

By Mark Wilson, Esq. on January 14, 2015 | Last updated on March 21, 2019

After losing in front of a Ninth Circuit panel, the States of Idaho and Nevada petitioned the full court for an en banc rehearing in Latta v. Otter. A majority of non-recused active judges didn't vote for en banc hearing.

But that doesn't mean some of them aren't upset! Judges Diarmuid O'Scannlain, Carlos Bea, and Johnnie Rawlinson filed a 24-page dissental arguing that "the same-sex marriage debate is not over" because the Sixth Circuit -- alone among the other circuits to decide the issue -- upheld laws prohibiting same-sex marriage.

The Standard Playbook

It's not terribly surprising to see O'Scannlain and Bea, two of the court's most conservative judges, advocating against same-sex marriage. The dissent from the denial of rehearing en banc goes through the entirety of the anti-same-sex marriage playbook. Baker v. Nelson? Check. A 43-year-old, one-sentence denial of certiorari remains as persuasive as ever.

"Teach the controversy"? Check. O'Scannlain writes, "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." That's true, but is it enough to rehash the "debate" when only two judges, out of all the federal appellate judges to hear the issue, decided against same-sex marriage?

Basically, O'Scannlain would have an en banc panel address the issues raised by DeBoer -- issues that every other court of appeals to hear the issue quickly put to bed. In fact, O'Scannlain and Bea could save everyone some time and read Judge Richard Posner's analysis. Baker? Not a thing anymore. "Democratic self-governance"? OK, except that the democratic tradition doesn't allow states to enact laws that discriminate against an entire group of people for no good reason.

Anthony Kennedy? Who's That?

Noticeably absent from his analysis of this second issue -- that the judiciary's endorsement of same-sex marriage flies in the face of the democratic process -- were Lawrence v. Texas and Romer v. Evans. That's not surprising, though, because both cases affirm that democratic self-governance doesn't include the right to discriminate against people you don't like just because you don't like them. (O'Scannlain cites to U.S. v. Windsor only to remind us that marriage regulation is the realm of the states, while ignoring any language in that opinion reminding us also that a law motivated by moral disapproval of a particular class of people has no rational basis.)

In the end, O'Scannlain's dissental amounts to little more than trying to delay an issue that's been firmly decided the other way -- that is, the way he doesn't like. Same-sex marriage isn't going away, and it certainly isn't going away because of a dusty old case like Baker, which, by the way, isn't even a reasoned defense of traditional marriage. Indeed, it's strange that same-sex marriage opponents, who wield Baker at the front of their offense, claim at once that there's no constitutional issue (which is what Baker said) and that there's a tremendous constitutional issue in the form of federalism and the democratic process.

One is reminded of Judge Raymond Randolph's opinion of dissents to denials of rehearing en banc: "They should not serve as the occasion for an exchange of advisory opinions, overtures to the Supreme Court, or press releases."

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