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Ninth Circuit’s neutrality questioned on gay rights

Arguing that the Ninth Circuit panel that ruled against the Nevada ban on same-sex marriage last week did not appear to have been selected by a neutral process, a private group in that state on Monday asked the full Ninth Circuit to reconsider that ruling to assure that the group got a fair hearing.

The plea by the Coalition for Protection of Marriage, based in Nevada, was filed Monday, along with a statistical study which was said to show that two of the Ninth Circuit’s more liberal judges wind up most often on panels deciding cases involving gay rights.  They were on the Nevada case panel.

“En banc review is necessary to assure that the appearance of bias is cured by a fresh hearing before a panel, the selection of which is unquestionably neutral,” the rehearing petition asserted.

The Nevada group has been defending Nevada’s same-sex marriage ban, and continued in that role after state officials decided that they would no longer provide a legal defense.  A three-judge panel made up of Circuit Judges Marsha S. Berzon, Ronald M. Gould, and Stephen Reinhardt decided the Nevada case last Tuesday.  Two days later, a federal trial judge put it into full effect.

The filing on Monday, citing an analysis done of gay rights cases in the Ninth Circuit since January 1, 2010, said that there have been eleven of those cases and that Judge Berzon sat on five and Judge Reinhardt on four.   “Statistical analysis,” it said, “demonstrates that the improbability of such occurring randomly is not just significant but overwhelming.  Thus, the odds are 441-to-1 against what we observe with the relevant cases.”

There are eighteen active judges on that court who have never been assigned to a gay rights case, the motion said.

The motion said that the issue was being raised “with respect and with a keen awareness that questioning the neutrality of the panel’s selection could hardly be more serious.”  But, given the importance of the same-sex marriage issue to Nevadans, the filing went on, “a hearing before an impartial tribunal is, after all, a central pillar of what our legal tradition means by due process of law, and the means of selecting the tribunal certainly implicates notions of impartiality.”

Conceding that the Ninth Circuit does have “a neutral process” for assigning judges to panels, the motion contended that, “in this case, the appearance is unavoidable that those measures failed.”

The document also questioned several parts of the three-judge panel’s ruling against the Nevada ban, including its conclusion (repeated from another case) that laws which are challenged as discriminating against gays and lesbians must be judged by a constitutional standard of “heightened scrutiny.”  Overall, the motion said, the decision “does not honestly engage the defense of Nevada’s marriage laws.”

Only one other federal appeals court, the motion noted, has adopted the tougher test of constitutionality, and it has been rejected by all of the others.

It appears that the motion seeks to have the Ninth Circuit recall its already-issued mandate in the Nevada case, and then have a vote among the Ninth Circuit’s active judges on granting en banc review.  It would take a majority of the active judges to grant en banc review.

The Ninth Circuit has previously denied en banc review of the earlier panel decision adopting “heightened scrutiny” for gay rights cases, and of a separate panel decision striking down California’s ban on same-sex marriage — “Proposition 8.”

Judge Reinhardt was on both of those panels, and Judge Berzon was on the panel that adopted “heightened scrutiny.”

The statistical study attached to Monday’s motion was prepared by an emeritus professor of statistics at Texas A&M University, James H. Matis.

Recommended Citation: Lyle Denniston, Ninth Circuit’s neutrality questioned on gay rights, SCOTUSblog (Oct. 13, 2014, 6:42 PM),