Same-sex marriage supporters hold a rally outside the Utah State Capitol on January 28, 2014 in Salt Lake City, Utah. (Photo: George Frey/Getty Images)
In 2002, Nevada amended its state Constitution to ban same-sex marriage, with nearly three-fourths of the voters’ support. In 2006, Idaho did the same.
Fast-forward to October 2014, when the Supreme Court refused to hear states’ appeals on gay marriage bans – and now gay marriage in both those states is suddenly lawful. The U.S. Court of Appeals for the Ninth Circuit in San Francisco struck down the bans, seemingly minutes after the Supreme Court turned away from the appeals.
But the issue is hardly going quietly into that good night. Now the Ninth Circuit is under attack.
An attorney for a group that’s been fighting to keep the traditional marriage laws in Nevada and Idaho intact has filed a petition to rehear the states’ cases en banc – before 11 of the dozens of judges that make up the Ninth Circuit. Why? He’s alleging, somewhat shockingly, that the process has been tainted – that statistically speaking, two of the three judges that heard the original case of Nevada and Idaho perhaps didn’t belong on the case.
Statistically speaking, these two judges – Judge Berzon and Judge Reinhardt – have been appointed to far more cases involving gay rights in recent years than chance appointment would have it.
In the petition for a rehearing en banc, attorneys for the Coalition for the Protection of Marriage argue that “Judge Berzon has been on the merits panel in five and Judge Reinhardt has been on the merits panel in four of the eleven Ninth Circuit cases involving the federal constitutional rights of gay men and lesbians.”
The petition includes an attached statistical analysis that breaks down the improbabilities of these two particular judges being selected that many times.
“[It’s] far more than any other judge and far more than can reasonably be accounted for by a neutral assignment process,” the petition reads. “Indeed, statistical analysis demonstrates that the improbability of such occurring randomly is not just significant but overwhelming. … We bring the issue of bias in the selection process to the Circuit’s attention with respect and with a keen awareness that questioning the neutrality of the panel’s selection could hardly be more serious.”
And to cut to the chase: “En banc review is necessary to ensure that the appearance of bias is cured by a fresh hearing before a panel, the selection of which is unquestionably neutral,” the attorneys wrote.
This is a serious charge – but then again, the numbers are intriguing. The attorneys find that the Ninth Circuit heard a total of 11 cases from January 2010 to the present that related to the constitutional rights of gays, five of which were heard by Berzon and four, by Reinhardt. Three other judges were each appointed to two of these cases. Seventeen were appointed to one case each. But 18 other judges who were listed as available – on active duty status – were not assigned to any of those gay rights cases. Admittedly, not all of these 11 cases were decided in favor of the gay-rights view. But in law, perception counts – it goes to ethics. And the petition sounds the alarm on that very principle.
“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,” the petition added, referring to the reputation of these two judges among legal minds, as well as to the natural observations of the public, based on the outcomes of the cases they’ve heard.
Throw in a professional statistician’s finding that the chances of these two judges being randomly appointed to so many of the 11 gay rights cases before the court ranges from 66:1 to 441:1 – as this petition adds – and the question does emerge: Are shenanigans afoot in the Ninth Circuit with gay marriage?
Common sense alone says yes. Or, as the petitioners put it: “The appearance of unfairness is not a close question here.”
The Ninth Circuit already has a national reputation as one of the most liberal courts in America. But this en banc hearing petition suggests something even more nefarious at play – that those with an agenda are taking strategic, preemptive moves to stack the court and sway outcomes. As the attorneys conclude in their petition, it’s time for the Ninth Court to step up and throw on a cloak of honor, and give the thumbs-up to the en banc petition — if nothing else than to “vindicate the values and integrity of its own judge assignment process.” What a concept – a court that holds dear to justice and truth.
Cherly Chumley, a full-time news writer with The Washington Times, is also the author of Police State USA: How Orwell’s Nightmare is Becoming Our Reality, available at Amazon and Barnes & Noble. To learn more about Cheryl, visit her website.
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