With the Recent decision the U.S. Court of Appeals for the Ninth Circuit affirming the right of gays and lesbians to marry (in cases from Nevada and Idaho), the group defending those bans in court has come forward with a last ditch effort to challenge that ruling.

In a petition filed last Monday, October 13, 2014, the Coalition for Protection of Marriage, who has been defending the Nevada ban on gay marriage, questioned the neutrality of the panel assigned to hear the case.  Arguments for the Courts of Appeals are generally heard before a randomly selected three judge panel from the active judges in that Circuit.  The petition argues that appeals judges Berzon and Reinhardt have served on panels deciding gay-rights cases in disproportionate numbers.   According to the petition, Berzon has served on appellate panels in five of eleven cases involving federal constitutional issues of gay rights, while Reinhardt has served on four. 

Forty-five judges are currently listed as active judges in the 9th Circuit, eighteen of whom have never served on an appeals panel in a gay-rights case, the petition says.   “Statistical analysis 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.”  The petition argues further that "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.”

The Coalition apparently concedes that the Ninth Circuit has “a neutral process” for assigning judges to panels; it thus, appears unlikely they will be successful in their effort.  The Supreme Court does not seem eager to get involved either, given their denials in all same-sex marriage cases that were filed this term.

See: http://www.scotusblog.com/2014/10/ninth-circuits-neutrality-questioned-on-gay-rights/

and case filing here: http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/Nevada-marriage-en-banc-pet.-by-CPM-10-13-14.pdf