Today the Ninth Circuit Court of Appeals ruled that it would not be hearing Prop 8 in an eleven judge en banc review. For those keeping score, this means the Supreme Court is all that’s left. Prop 8 Trial Tracker has the details.

Since I really have nothing to add to that article, I’m going to address a dissent written by one Judge O’Scannlain, who has apparently written on this subject before. From P8TT, here is Judge O’Scannlain’s dissent in full.

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 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.

Right. Let’s get one thing straight right away, this has never been a respectful conversation. Ten years ago when it was Prop 22 it was not a respectful conversation. You could see this from the slogans, “Protect Marriage!” as though the existence of same-sex weddings would taint the entire concept somehow. When you speak of people as though they’re a pollutant, you are not being respectful. “Whites only” drinking fountains come to mind.

Do you seriously believe that it is right or just to remove rights from people because the majority wish it? How many voters were overruled to legalize interracial marriage, or remove segregation? We fought a civil war over slavery, how many voters wanted that?

As for “definition of marriage that has existed for millennia”, this shows only that you haven’t studied your history. Or your Bible, for that matter. Readers may recall that King Solomon had 700 wives, and the Ten Commandments explicitly refer to wives as property.

In many states 50 years ago an interracial couple couldn’t get married. 100 years ago a wife was legally subordinate to her husband. 200 years ago black people couldn’t legally marry at all.

Are these changing definitions?

You’re right about one thing, though you said it in sarcasm, and that’s animus. Here, let me fix that sentence for you:

…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 passed a constitutional amendment removing existing rights from its citizens

Because that’s what happened. There was no “remained committed”, there was no legal restriction and assholes like you created one.

If the law is not applied fairly and evenly to all people, then we don’t really have the rule of law. Since the minorities, the hated, the outcasts, the poor and downtrodden are the ones most likely to get the short end of the legal stick, the courts must always be mindful that they serve all the people, and that “we’ve always done it this way” is not an acceptable reason to deny, or in this case remove, the equal rights of citizens, no matter how few and disenfranchised. As a judge, you should understand that.

In a free society human self-determination and happiness must take precedent over tradition.

So in continuing with the level of respectful discourse that proponents of Prop 8 set with their advertising campaign back in 2008, I would like to sum up by saying:

Judge O’Scannlain,

fuck you!