Three judges of the U.S. Court of Appeals for the Ninth Circuit, sharply protesting a three-judge panel’s October ruling in favor of same-sex marriage in two states, argued on Friday that courts at that level of the federal judiciary have no authority to decide that question. The Supreme Court, those judges argued, took away that power forty-two years ago.
The critique, one of the strongest dissenting statements yet issued amid a wave of federal and state court rulings striking down bans on same-sex marriages, came as the en banc Ninth Circuit refused — by a vote of eight to three — to reconsider the panel’s combined decision in cases from Idaho and Nevada.
.... The heart of the dissent was its argument that lower courts are still bound by the Supreme Court’s one-line decision in 1972 in the case of Baker v. Nelson, declaring that a claim to same-sex marriage did not raise “a substantial federal question.” ....
Judge O’Scannlain did make some of the same other points that the Sixth Circuit panel’s majority had, such as the argument that an issue as sensitive as same-sex marriage should be left to the people and the state legislatures to resolve, and that it will be better for the nation and for its people to have it worked out by representative government rather than by the courts. ...|
The Ninth Circuit dissent, though, added another point that went beyond the Sixth Circuit’s ruling against same-sex marriage. The dissenters said that the courts simply have no authority to decide any question about marital policy, because there is a flat “domestic relations exception” to federal court jurisdiction over that field of law, since it is to be left to the states.