WASHINGTON — The lawyer representing the group that supports Nevada's ban on same-sex couples' marriages made an explosive claim on Monday: He argued that a federal appeals court appears to have picked specific judges "in order to influence the outcome" of marriage cases.
Same-sex couples began marrying in Nevada on Oct. 9, following the decision of a three-judge panel of the 9th Circuit Court of Appeals two days earlier that the state's marriage ban is unconstitutional.
On Monday, the lawyer for the Coalition for the Protection of Marriage, Monte Stewart, requested a larger panel of the 9th Circuit to rehear the case.
One of the reasons he asked for the rehearing, he claimed, is the "high likelihood that the number of Judges [Stephen] Reinhardt and [Marsha] 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."
Stewart wrote that the claim was the result of "[c]areful statistical analysis" by Dr. James H. Matis.
Stewart went further, writing, "The appearance of unfairness is not a close question here. Even without the aid of professional statisticians, a reasonable person will immediately sense that something is amiss when one judge out of more than thirty is assigned over a four and one-half year period to five of this Circuit's eleven cases involving the federal constitutional rights of gay men and lesbians, another to four of those cases, and both of them to the momentous 'gay marriage' cases."
In an affidavit filed and signed by Stewart with the filing, he noted the legal team's decision to obtain the analysis from Matis and includes Stewart's personal conclusion that the panel of judges that heard the Nevada marriage case was one of the most favorable possible panels for the same-sex couple plaintiffs and "among the least favorable" for "the man-woman marriage side." He then added that "such preferences and conclusions are known and understood by all at the Ninth Circuit involved with the judge-assignment process."
Because of this claimed "appearance of unfairness," Stewart argued in the request that an en banc rehearing is needed in order "to vindicate the values and integrity of [the appeals court's] own judge-assignment process."
Why Stewart argues this is a problem:
Where Stewart argues that all that matters is the "vivid appearance" of unfairness:
"Something is amiss," he argues:
Statistics "validate" this:
As such, a rehearing en banc is needed, Stewart concludes:
In addition to the filing, Stewart himself filed an affidavit in conjunction with the filing, noting the statistical analysis and adding this conclusion:
This post was updated to include information from Monte Stewart's affidavit.
The lawyers who brought the case on behalf of same-sex couples in Nevada responded to Monday's filing with a statement from Lambda Legal senior attorney Tara Borelli:
"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."