Three conservatives dissented from the denial for en banc review of the Prop 8 ruling along with the original dissenter (with no opinion here). O’SCANNLAIN, Circuit Judge, joined by BYBEE and BEA are basically "usual suspects" in this respect. If anyone else dissented, it was off the record. The three started with a citation of President Obama's recent remarks:
This is rather dubious. This case has dragged on for years and ultimately (even if the USSC does not grant cert., which I hope it does not, given its narrow reach etc.) the result is (like the 1CA ruling on DADT) a nudge, but a "respectful" one. It continues ignorance to interpret his words so literally that states are deemed to have carte blanche here. There clearly do not, even if they have broad practical and actual discretion. This is seen by other state practices in the Ninth Circuit, for which this opinion does not on its own disallow, including those without SSM. The comment is best defended in California, but the ruling is narrow enough that even there a law (the unpopularity is duly noted) can be imagined that would fit its terms. OTOH, as noted at the time, even various law professor types appear not to quite understand it.
As noted by a comment here, the dissent also does not seem that "respectful," but who is surprised given the author?
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 samesex 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.This is a misconstruction of what actually occurred. The panel opinion (by the liberal lion of the circuit) relied on narrow grounds that did not apply to most state laws and only arguably in the remaining (e.g., Hawaii passed a state amendment to stop a pending lawsuit that looked to place the state on the road to SSM, but there the state legislature was given the discretion to vote for it; not in California). Putting aside the merits (I think the ruling provides a quite "recognizable" reading of Romer v. Evans), the implication seems to be any ruling that "overruled the will" of the voters (but, not, the "will" of the governor they voted for, apparently), no matter how constitutionally problematic, would violate Obama's sentiments.
This is rather dubious. This case has dragged on for years and ultimately (even if the USSC does not grant cert., which I hope it does not, given its narrow reach etc.) the result is (like the 1CA ruling on DADT) a nudge, but a "respectful" one. It continues ignorance to interpret his words so literally that states are deemed to have carte blanche here. There clearly do not, even if they have broad practical and actual discretion. This is seen by other state practices in the Ninth Circuit, for which this opinion does not on its own disallow, including those without SSM. The comment is best defended in California, but the ruling is narrow enough that even there a law (the unpopularity is duly noted) can be imagined that would fit its terms. OTOH, as noted at the time, even various law professor types appear not to quite understand it.
As noted by a comment here, the dissent also does not seem that "respectful," but who is surprised given the author?