Main | Monday, October 13, 2014

NEVADA: Hate Group Asks For En Banc Re-Hearing Of Ninth Circuit Marriage Case

The anti-gay Coalition For The Protection Of Marriage today filed a demand that the full Ninth Circuit Court hear the case that resulted in the overturn of Nevada's ban on same-sex marriage. The filing accuses the Ninth Circuit of "panel-packing" - deliberately assigning LGBT-related cases to judges likely to vote in favor of LGBT rights.
From January 1, 2010, to the present, this Court has assigned to merits panels eleven cases involving the federal constitutional rights of gay men and lesbians, what we refer to as the Relevant Cases. They are listed and described in Exhibit 1. Judge Berzon has been on five of those panels. Judge Reinhardt has the next highest number, with four panel assignments. With two, Judges Schroeder, Thomas, and Alarcón are the only other judges with more than one assignment. Seventeen, including District Judge Bennett, received one assignment.

Eighteen of the judges with active status during any part of the relevant time period received none. Careful statistical analysis indicates a high likelihood that the number of Judges Reinhardt and Berzon’s assignments to the Relevant Cases, including this and the Hawaii and Idaho marriage cases (which we treat as one for these purposes), did not result from a neutral judge-assignment process.

Judges Reinhardt and Berzon are publicly perceived to be favorably disposed to arguments for expanding the rights of gay men and lesbians, more so than all or nearly all other judges in this Circuit. That perception gives rise to an appearance of an uneven playing field. That perception is reinforced by, one, the unremarkable observation that experienced and informed lawyers would readily assess this panel as one quite congenial to the plaintiffs in these marriage cases and just the opposite to the parties defending man-woman marriage; and, two, since the announcement of this three-judge panel on September 1, 2014, the consistent public commentary to the effect that, for the plaintiffs, this panel is the most favorable panel possible.
Yeah, good luck with that.

UPDATE: Lambda Legal reacts.
The Coalition's claims of an improper judicial selection process are unfounded, desperate, and sad. We are embarrassed that they have stooped to attacking the integrity of our federal judiciary, rather than accepting an outcome they disagree with a modicum of grace. We are confident the Coalition's request for rehearing will be rejected, for at least two reasons. First, its arguments about the law have been rejected repeatedly, including in the Fourth, Seventh, and Tenth Circuit decisions that the Supreme Court just let stand - and with near unanimity by all the courts who have considered since Windsor whether our Constitution requires that same-sex couples be allowed to marry. Second, the Coalition lacks standing to seek further review on its own. The law is clear: an actual controversy must exist throughout all stages of litigation. Given that the only defendants actually affected by this litigation are the government officials who have been allowing same-sex couples to marry since last week, it's clear that there is no further controversy to resolve.

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