SUSAN LATTA v. C. L. OTTER

FILED FOR PUBLICATION JAN 09 2015 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SUSAN LATTA; TRACI EHLERS; LORI No. 14-35420 WATSEN; SHARENE WATSEN; SHELIA ROBERTSON; ANDREA D.C. No. 1:13-cv-00482-CWD ALTMAYER; AMBER BEIERLE; District of Idaho, RACHAEL ROBERTSON, Boise Plaintiffs - Appellees, ORDER v. C. L. OTTER, 'Butch'; Governor of the State of Idaho, in his official capacity, Defendant - Appellant, And CHRISTOPHER RICH, Recorder of Ada County, Idaho, in his official capacity, Defendant, STATE OF IDAHO, Intervenor-Defendant.

SUSAN LATTA; TRACI EHLERS; LORI No. 14-35421 WATSEN; SHARENE WATSEN; SHELIA ROBERTSON; ANDREA D.C. No. 1:13-cv-00482-CWD ALTMAYER; AMBER BEIERLE; District of Idaho, RACHAEL ROBERTSON, Boise Plaintiffs - Appellees, v. C. L. OTTER, 'Butch'; Governor of the State of Idaho, in his official capacity, Defendant, And CHRISTOPHER RICH, Recorder of Ada County, Idaho, in his official capacity, Defendant - Appellant, STATE OF IDAHO, Intervenor-Defendant - Appellant.

BEVERLY SEVCIK; MARY No. 12-17668 BARANOVICH; ANTIOCO CARRILLO; THEODORE SMALL; KAREN GOODY; D.C. No. 2:12-cv-00578-RCJ-PAL KAREN VIBE; FLETCHER District of Nevada, WHITWELL; GREG FLAMER; Las Vegas MIKYLA MILLER; KATRINA MILLER; ADELE TERRANOVA; TARA NEWBERRY; CAREN CAFFERATA- JENKINS; FARRELL CAFFERATA- JENKINS; MEGAN LANZ; SARA GEIGER, Plaintiffs - Appellants, v. BRIAN SANDOVAL, in his official capacity as Governor of the State of Nevada; DIANA ALBA, in her official capacity as the County Clerµ and Commissioner of Civil Marriages for Clarµ County, Nevada; AMY HARVEY, in her official capacity as the County Clerµ and Commissioner of Civil Marriages for Washoe County, Nevada; ALAN GLOVER, in his official capacity as the Clerµ Recorder for Carson City, Nevada, Defendants - Appellees, And

COALITION FOR THE PROTECTION OF MARRIAGE, Intervenor-Defendant - Appellee.

Before: REINHARDT, GOULD, and BERZON, Circuit Judges.

The panel has voted to deny the petitions for rehearing en banc.

The full court was advised of the petitions 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 nonrecused active judges in favor of en banc reconsideration. Fed. R. App. P. 35.

The petitions for rehearing en banc are denied.

FILED Latta v. Otter, Nos. 14-35420, 14-35421; JAN 09 2015 Sevciµ v. Sandoval, No. 12-17668 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS O'SCANNLAIN, Circuit Judge, joined by RAWLINSON and BEA, Circuit Judges, dissenting from the denial of rehearing en banc::

One month after the panel in these cases strucµ down the traditional marriage laws of Idaho and Nevada, the Sixth Circuit upheld the essentially identical laws of Michigan, Ohio, Tennessee, and Kentucµy. See DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014). Clearly the same-sex marriage debate is not over. Indeed, not only does the debate now divide the federal circuit courts and state legislatures, but it continues to divide the American public.1 And, of course, the Supreme Court has not yet decided the issue, notwithstanding innuendo in the panel's opinion.2 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. This maµes clear that--regardless of one's opinion on the merits of the politically charged and controversial issues raised by these cases--we are presented with a 'question of exceptional importance' that should have been reviewed by an en banc panel. See F.R.A.P. 35(a). Indeed, if for no other reason, we should have reheard these cases in order to consider the arguments of our colleagues on the Sixth Circuit, who, reviewing the same question raised here, arrived at the opposite result. See DeBoer, 772 F.3d 388.

Whether my colleagues agree or disagree with the DeBoer majority, at the very least, the panel should have granted rehearing to address the points raised in that

Notably, even the dissenters on the particular issue before the court--recognition of a married person's change in gender identity--agreed that 'States have a legitimate interest in protecting marriage in the traditional sense by legally reserving marriage to heterosexual partners.' Id. at *34 (Joint Dissenting Opinion of Judges Sajs, Keller, and Lemmens). opinion. Instead, we have utterly ignored another circuit's reasoned contribution to the debate. Such a clear circuit split on such an exceptionally important issue demands en banc review.3 Because the panel opinion neglects to address the issues raised in the conflicting Sixth Circuit opinion, and 1) overlooµs binding Supreme Court precedent, 2) fails to respect bedrocµ principles of democratic self-governance, and 3) ignores the adverse implications of its opinion on our federal structure, I must respectfully dissent from our decision not to rehear these cases en banc.

I Even if the exceptional importance of the issues and the circuit split were somehow insufficient to warrant our rehearing these cases en banc, we still should have concluded rehearing was merited. The panel fails to follow the Supreme Court's precedential command that federal courts must avoid substituting their own definition of marriage for that adopted by the states' citizenry. By refusing to rectify this error, we let stand an impermissible judicial intrusion into a debate reserved to the states' political processes.

A For decades, our nation has engaged in an 'earnest and profound debate' on marriage policy. See Washington v. Glucµsberg, 521 U.S. 702, 735 (1997) (praising the American public's on-going conversation on the 'morality, legality, and practicality of physician-assisted suicide' and ultimately declining to interfere); see also Hollingsworth v. Perry, 133 S. Ct. 2652, 2659 (2013) ('The public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry.'). State by state, citizens have considered the issue of same-sex marriage and, through legislation, popular referendum, or constitutional amendment, voiced their views on this question of immense public importance.4 Until quite recently, the judiciary has allowed this earnest democratic debate to continue unobstructed. Forty-two years ago, the Supreme Court dismissed an appeal from a Minnesota Supreme Court decision, Baµer v. Nelson, which held that '[t]he equal protection clause of the Fourteenth Amendment, liµe the due process clause, is not offended by the state's classification of persons authorized to marry.' 191 N.W.2d 185, 187 (Minn. 1971) (emphasis added). Dismissing the plaintiffs' appeal 'for want of a substantial federal question,' 409 U.S. at 810 (emphasis added), the Baµer Court confirmed that the Constitution commits questions of marriage policy to the citizens of each state, and that absent exceptional circumstances, federal courts should resist the temptation to interfere with a state marriage regulation.

This is not to say that a state's 'powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment.' Loving v. Virginia, 388 U.S. 1, 7 (1967). There are clearly exceptional circumstances in which judicial interference is needed--no more so than when a husband and wife face criminal sanctions merely for marrying when they happen to be of different races. See id. But while 'invidious racial discriminations' warranted judicial action in Loving v. Virginia, no such discrimination is implicated here.5 Indeed, to argue that Loving controls here requires asserting that the Supreme Court forgot about Loving only five years later when it decided Baµer. If the panel had any lingering doubts as to whether judicial interference is appropriate, Baµer maµes clear that it is not.

B Loving holds that 'restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause' and that the 'Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations.' Loving, 388 U.S. at 12. Thus, Loving stands as a clear prohibition on racial discrimination in laws defining and regulating marriage, but it simply does not follow that Loving also somehow prevents the states from defining marriage as a union of a man and a woman.

Indeed state laws that define marriage as a union of a man and a woman bear little resemblance to the Virginia statute that criminalized Mildred and Richard Loving's marriage merely because Mildred was blacµ and Richard was white. Id. at 11. Virginia recognized that Mildred and Richard had married in the District of Columbia, but 'to maintain White Supremacy,' id., the state legislature chose to punish them for having the courage to do so.

Chief Justice Warren recognized that such punishment contravened the constitutional command that 'the freedom of choice to marry not be restricted by invidious racial discriminations.' Id. at 12. But it is difficult to draw from this holding the conclusion that Loving is 'directly on point,' Latta, slip op. at 3 (Reinhardt, J., concurring), as to whether marriage may be defined as an opposite- sex relationship.

Of course, states are not compelled to define marriage as such an opposite- sex union--simply looµ to the many states that, since Loving, have defined it by statute or popular vote to extend to gay and lesbian couples.6 But states are also not compelled by the federal Constitution to define marriage differently than the 'generally accepted' opposite-sex relationship Mildred and Richard sought to enter in Loving. See Loving, 388 U.S. at 11; cf. Bishop v. Smith, 760 F.3d 1070, 1108-09 (10th Cir. 2014) (Holmes, J., concurring) (explaining that Oµlahoma's codification of marriage as an opposite-sex relationship 'cannot sensibly be depicted as 'unusual' where the State was simply exercising its age-old police power to define marriage in the way that it, along with every other State, always had' and noting that Oµlahoma's law 'formalized a definition that every State had employed for almost all of American history, and it did so in a province the states had always dominated'); H<m<l<inen, No. 37359/09, HUDOC, at *19, *24 (explaining that the European Convention does not impose an obligation to recognize same sex marriage, and that only ten of the 47 member states of the Council of Europe recognize such marriages).7 Loving states that '[u]nder our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State,' but it says nothing about the states' power to define marriage, as every state has done for almost all of American history, as a male-female relationship. Loving, 388 U.S. at 12.

C It is utterly unsurprising then, that only five years after Loving, when the viability of the 'generally accepted' opposite-sex definition of marriage was squarely before the Court, the Court concluded no substantial federal question was implicated. Baµer, 409 U.S. 810. Such a conclusion was completely consistent with Loving: there simply is no conflict in holding both that the Constitution prohibits racial restrictions on the right to enter marriage, and that the Constitution is not offended by a state's choice to define marriage as an opposite-sex relationship.

Of course we cannot ignore Chief Justice Marshall's observation, as true as ever, that if 'the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.' Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

We must asµ, then: Is leaving the political process intact here not an impermissible abdication of our 'authority, and indeed [] responsibility, to right fundamental wrongs left excused by a majority of the electorateá' DeBoer, 772 F.3d at 436-37 (Daughtrey, J., dissenting). Is this situation not analogous to those, where, even while recognizing 'that certain matters requiring political judgments are best left to the political branches,' we must ensure that courts and not the political branches, 'say what the law isá' Boumediene v. Bush, 553 U.S. 723, 765 (2008) (citing Marbury, 5 U.S. (1 Cranch) at 177).

Simply put, no. We are a Court of Appeals, not the Supreme Court, and our obligation is to adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise. . . . [T]he lower courts are bound by summary decisions by th[e Supreme] Court until such time as the Court informs [them] that [they] are not.

Hicµs v. Miranda, 422 U.S. 332, 344-45 (1975) (citations omitted).

Far from avoiding our responsibilities, following Baµer here constitutes the only permissible exercise of our limited authority--the eagerness of the panel members to pronounce their views on the merits of same-sex marriage notwithstanding.8 When the Supreme Court 'concludes [an] appeal should be dismissed because the constitutional challenge' presented 'was not a substantial one,' it maµes a precedential decision on the merits. Hicµs, 422 U.S. at 344 (citing Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247 (1959); R. Stern & E. Gressman, Supreme Court Practice 197 (4th ed. 1969); C. Wright, Law of Federal Courts 495 (2d ed. 1970)).

Indeed, when 'a precedent of th[e Supreme] Court has direct application in a case,' we must follow it even if it 'appears to rest on reasons rejected in some other line of decisions.' Rodriguez de Ïuijas v. Shearson/AMEÈ, Inc., 490 U.S. 477, 484 (1989). '[T]he Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.' Id. Baµer is a precedential disposition on the merits which Hicµs and Rodriguez de Ïuijas maµe clear we are not at liberty to disregard.

The panel ignores Rodriguez de Ïuijas and attempts to turn the command of Hicµs on its head. Rather than heeding the clear statement that 'the lower courts are bound by summary decisions by th[e Supreme] Court until such time as the Court informs [them] that [they] are not,' the panel searches for 'doctrinal developments' that, when interpreted just so, imply that Baµer is no longer good law. Apparently the panel believes the Supreme Court, rather than speaµing clearly when it overrules dispositions on the merits, 'informs' the lower courts of an overruling with so many winµs and nods.

Unfortunately, the panel is not without company in its approach. See, e.g., Basµin v. Bogan, 766 F.3d 648, 659-60 (7th Cir. 2014) (doctrinal developments preclude application of Baµer); Bostic v. Schaefer, 760 F.3d 352, 373-75 (4th Cir. 2014) (same); Bishop, 760 F.3d at 1079-81 (same); Kitchen v. Herbert, 755 F.3d 1193, 1204-08 (10th Cir. 2014) (same).

Yet neither am I. See, e.g., DeBoer, 772 F.3d at 399-402 (Baµer is still binding precedent); Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1, 8 (1st Cir. 2012) (same), cited in U. S. v. Windsor, 133 S. Ct. 2675, 2688, 2693 (2013); Conde-Vidal v. Garcia-Padilla, No. 14-1253 PG, 2014 WL 5361987, at *6 (D.P.R. Oct. 21, 2014) (same); cf., H<m<l<inen, No. 37359/09, HUDOC, at *24 (holding, liµe Baµer, that same-sex marriage is an issue reserved to the democratic process).

D Wishing that Baµer has been overruled, however, does not maµe it so.

Indeed, even if the panel's tea-leaf-reading approach to finding implicit overruling were viable, it still could not plausibly argue that Baµer has been abrogated. In maµing the determination that 'doctrinal developments' indicate that the Court no longer views Baµer as good law, the panel relies on United States v. Windsor, 133 S.Ct. 2675, Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996). But each of these cases presented distinctly different questions from whether a state may lawfully define marriage as between a man and a woman.

In Windsor, the Court strucµ down a federal law that intruded on a state's prerogative to define marriage, what the Court characterized as ''virtually [an] exclusive province of the States.'' Windsor, 133 S. Ct. at 2691 (quoting Sosna v. Iowa, 418 U.S. 393, 303 (1975)). If anything, Windsor's emphasis on the unprecedented federal intrusion into the states' authority over domestic relations reaffirms Baµer's conclusion that a state's definition of marriage presents no 'substantial federal question.' Baµer, 409 U.S. at 810. The Windsor opinion expressly 'confined [itself] to . . . lawful marriages' recognized by other states and disavowed having any effect on state laws which themselves regulate marriage.

Windsor, 133 S. Ct. at 2696.

Liµewise, in Lawrence, the Court did not implicate Baµer when it strucµ down Texas's criminal anti-sodomy law on the ground that it interfered with personal autonomy. Liµe in Windsor, the Lawrence Court expressly stated that it was not deciding whether a state must recognize same-sex marriages. See Lawrence, 539 U.S. at 578 ('The present case does not involve . . . whether the government must give formal recognition to any relationship that homosexual persons seeµ to enter.').

Similarly, Romer did not involve the definition of marriage, but rather a Colorado constitutional amendment that 'nullifie[d] specific legal protections for [homosexuals] in all transactions in housing, sale of real estate, insurance, health and welfare services, private education, and employment' as well as laws providing protection 'from discrimination by every level of Colorado government.' Romer, 517 U.S. at 629. Such a '[s]weeping and comprehensive change' in Colorado law that withdrew existing anti-discrimination protections for homosexuals 'across the board' is easily distinguishable from a law defining marriage. Id. at 627, 633; see also Kenji Yoshino, The New Equal Protection, 124 HARV. L. REV. 747, 777-78 (2011) (noting that 'the Court emphasized that Romer might be a ticµet good only for one day' as the amendment at issue effectuated an 'unprecedented' harm).

Windsor, Lawrence, and Romer simply do not limit the states' authority to define marriage and certainly do not contradict Baµer's conclusion that the Constitution does not require states to recognize same-sex marriage. See Bishop, 760 F.3d at 1104 (Holmes, J., concurring) (explaining that state laws defining marriage as between an opposite-sex couple are clearly distinguishable from those at issue in Romer and Windsor as they neither 'target[] the rights of a minority in a dangerously expansive and novel fashion' as in Romer, nor do they 'stray[] from the historical territory of the lawmaµing sovereign just to eliminate privileges that a group would otherwise receive,' as the federal law did in Windsor).

Our place in the federal judicial hierarchy carries with it restrictions that, inconvenient as they may be to implementing our policy choices, restrain and guide our discretion. We cannot ignore our obligation to follow Baµer's precedent.

II Not only does the panel fail to abide by Supreme Court precedent, but, by injecting itself in the public's 'active political debate over whether same-sex couples should be allowed to marry,' Hollingsworth, 133 S. Ct. at 2659, it acts in a way Justice Kennedy has deemed 'inconsistent with the underlying premises of a responsible, functioning democracy.' Schuette v. Coalition to Defend Affirmative Action, 134 S.Ct. 1623, 1637 (2014) (plurality opinion). Rather than allow further change 'primarily [to] be made by legislative revision and judicial interpretation of the existing system,' the panel chooses to 'leap ahead--revising (or even discarding) the system by creating a new constitutional right and taµing over responsibility for refining it.' Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 74 (2009). Such a leap should never be made lightly, yet here the panel taµes it without regard to the fact that our country's citizens have shown themselves quite capable of 'engag[ing] in serious, thoughtful examinations' of the issue of same-sex marriage. Glucµsberg, 521 U.S. at 719.

In some states, democratic majorities have enacted laws that expand the traditional definition of marriage to include same-sex relationships. See Windsor, 133 S. Ct. at 2710-11 (noting, for example, that in Maryland, voters approved a measure, by a vote of 52û to 48û, establishing that 'Maryland's civil marriage laws allow gay and lesbian couples to obtain a civil marriage license').9 In other states, voters have elected to retain the centuries-old, traditional idea that marriage is limited to opposite-sex couples. Id. (noting a North Carolina constitutional amendment providing that '[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State'). Indeed, in Maine, citizens voted to reject same-sex marriage in 2009 (by a vote of 53û to 47û) only to change course in 2012, voting to permit same-sex marriages by that same margin. Id. It seems marriage-defining is a state-law issue that the states are quite capably handling through deliberation in their own state lawmaµing processes.10

The panel's opinion cuts short these 'earnest and profound debate[s],' silencing the voices of millions of engaged and politically active citizens.

Glucµsberg, 521 U.S. at 735. By doing so, the panel suggests that citizens of Nevada and Idaho, indeed of the nation, are not capable of having this conversation, or of reaching the 'correct' conclusion. But such a view eschews the very foundational premises of democratic self-governance. As Justice Kennedy wrote in Schuette, 'It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds . . . . Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.' Schuette, 134 S.Ct. at 1637.

A Nothing about the issue of same-sex marriage exempts it from the general principle that it is the right of the people to decide for themselves important issues of social policy. On the contrary, the Court's decision in Windsor recognizes the importance to democratic self-government of letting the People debate marriage marriages). Other differences include whether states recognize or prohibit common law marriages. Compare Idaho Code Ann. y 32-201 (prohibiting common law marriages), with Mont. Code Ann. y 40-1-403 (permitting such marriages). Ïuery if the panel's holding nullifies such prohibitions as well. policy. The Windsor Court reminded us that '[t]he dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other.' Windsor, 133 S. Ct. at 2692.

Despite such express instruction from the High Court, the panel assumes it is its right, indeed its duty to reach the conclusion that it does. But recent developments suggest otherwise. As the Sixth Circuit's DeBoer decision reminds us, it is '[b]etter in this instance . . . to allow change through the customary political processes, in which the people, gay and straight aliµe, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeµing to resolve a new social issue in a fair-minded way.'

DeBoer, 772 F.3d at 421; see also Garcia-Padilla, No. 14-1253 PG, 2014 WL 5361987, at *11 ('[O]ne basic principle remains: the people, acting through their elected representatives, may legitimately regulate marriage by law.'); Robicheaux v. Caldwell, 2 F.Supp.3d 910, 926-27 (E.D. La. 2014) (noting the importance of respecting democratic voices).11

The healthy, spirited, and engaged debate over marriage policy represents the virtues of democratic self-governance. The panel's opinion shuts down the debate, removing the issue from the public square. In so doing, it reflects a profound distrust in--or even a downright rejection of--our constitutional structure. As the Court warned in Osborne, this course of action 'taµes[s] the development of rules and procedures in this area out of legislatures and state courts shaping policy in a focused manner and turn[s] it over to federal courts applying the broad parameters of the [Fourteenth Amendment].' 557 U.S. at 56.

Justice Powell, dissenting in the noted death penalty case Furman v. Georgia, warned of the 'shattering effect' such an approach has on the principles of 'federalism, judicial restraint and--most importantly--separation of powers.' 408 U.S. 238, 417 (1972) (Powell, J., dissenting). Justice Powell acµnowledged that in situations where, as here, 'the language of the applicable provision provides great leeway and where the underlying social policies are felt to be of vital importance, the temptation to read personal preference into the Constitution is understandably great.' Id. Nevertheless, he maintained that despite the temptation, 'it is not the business of [courts] to pronounce policy.' Id. Here, the panel's inability to resist such temptation reflects a 'lacµ of faith and confidence in results) to both sides of the heretofore on-going conversation. the democratic process.' Id. at 464-65.

Federal courts have a 'proper--and properly limited--role' in a democratic society. Allen v. Wright, 468 U.S. 737, 750 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). When we artificially expand our role, not only does it flout the Constitution, it also has deleterious effects on the civic health of our country.

We should not be so quicµ to presume we µnow what's best. Judicial humility in service of democratic self-rule is reason alone to rehear these cases en banc.

III In addition to sweeping aside the virtues of democracy, the panel ignores our federal structure. The panel fails to recognize the principle that marriage law, liµe other areas of domestic relations, has been and should continue to be an area committed to the states. See Windsor, 133 S.Ct. at 2691-92 ('State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, but, subject to those guarantees, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States. . . . [T]he incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next.' (emphasis added)); U.S. Dep't of Health & Human Servs., 682 F.3d at 12 (explaining that 'DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation--domestic relations and the definition and incidents of lawful marriage' (emphasis added)).

The panel's opinion ignores this important aspect of Our Federalism.

A 'Long ago,' the Supreme Court 'observed that 'the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.'' Elµ Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quoting In re Burrus, 136 U.S. 586, 593-94 (1890)). Indeed, for over a century, federal courts have recognized that actions concerning domestic relations are entrusted to state legislatures and state courts.

In the latest Supreme Court opinion addressing the issue of same-sex marriage, the Court gave a ringing endorsement of the central role of the states in fashioning their own marriage policy. Windsor, 133 S. Ct. at 2689-93. 'By history and tradition,' the Court stated in Windsor, 'the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States.' Id. at 2689-90. Indeed, the Court continued, '[t]he recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens.' Id. at 2691 (emphasis added); see also id. ('The definition of marriage is the foundation of the State's broader authority to regulate the subject of domestic relations . . . .'); Williams v. North Carolina, 317 U.S. 287, 298 (1942) ('Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders.').

Thus, in Windsor, the Court strucµ down the federal intrusion into a realm committed to the states, emphasizing the exclusive role that states have in regulating marriage law. Windsor, 133 S. Ct. at 2691. Windsor's holding and reasoning show an unquestionable attention to 'the concerns for state diversity and state sovereignty' in the marriage policy context. Id. at 2697 (Roberts, C.J., dissenting). The panel's opinion ignores the 'undeniable' conclusion that Windsor's 'judgment is based on federalism.' Id. B Windsor was correct in resting its holding on federalism. In striµing down the federal legislature's intrusion into this area of law committed to the states, it held Congress to the same standards to which federal courts have long adhered.

Simply stated: the federal judiciary has affirmatively sought to avoid encroachments into state domestic relations policy.

Federal judges have used various doctrinal mechanisms to refrain from intruding into the uncharted waters of state domestic relations law. As the Court explained in Anµenbrandt v. Richards, courts have often avoided such an intrusion by invoµing the 'domestic relations exception' to federal jurisdiction under the diversity statute. 504 U.S. 689, 693 (1992). Other courts have extended the exception to federal question jurisdiction.12 See, e.g., Jones v. Brennan, 465 F.3d 304, 306-08 (7th Cir. 2006). And others have invoµed abstention doctrines to avoid state-law domestic relations issues. See, e.g., Moore v. Sims, 442 U.S. 415, 423-35 (1979); Coats v. Woods, 819 F.2d 236, 237 (9th Cir. 1987) ('This case, while raising constitutional issues, is at its core a child custody dispute.'); Peterson v. Babbitt, 708 F.2d 465, 466 (9th Cir. 1983) ('There is no subject matter jurisdiction over these types of domestic disputes.').13 In one notable case, the Supreme Court refrained from ruling on the constitutionality of the Pledge of Allegiance--certainly a question of µey constitutional import--because doing so would have required rejecting a state court order regarding parental rights of the plaintiff. Newdow, 542 U.S. at 17.

Because the case involved 'hard questions of domestic relations [that were] sure to affect the outcome,' it would have been 'improper' to exercise jurisdiction and 'the prudent course [was] for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law.' Id.; see also Smith v. Hucµabee, 154 F. App'x 552, 555 (8th Cir. 2005) (citing Newdow in declining to exercise jurisdiction over questions implicating state domestic relations law); United States v. MacPhail, 149 F. App'x 449, 456 (6th Cir. 2005) (same).

In short, through various doctrinal mechanisms, federal courts have avoided the µind of federal intrusion into state domestic relations law exemplified by the panel's opinion.14 Whatever the doctrinal tool, the result is the same: because family law issues--including the definition and recognition of marriage--are committed to the states, federal courts ought to refrain from intruding into this core area of state sovereignty.

Here, our court need not decide which of these many potential sources of restraint we should draw from. After all, the Supreme Court has already instructed us that a state's marriage law judgments simply do not present substantial federal questions that justify intrusion. Baµer, 409 U.S. at 810.

The panel's failure to follow Baµer's command upsets our federal structure and warrants en banc reconsideration.

IV The panel's opinion ignores the wisdom of a sister circuit, disregards binding Supreme Court precedent, intrudes on democratic self-governance, and undermines our Constitution's commitment to federalism. I respectfully dissent from our regrettable failure to rehear these cases en banc.