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9th Circuit

Liberal 9th Circuit judges appear to get gay-rights cases in disproportionate numbers, brief asserts

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A Nevada group seeking to uphold a ban on gay marriages is using statistics to assert that a federal appeals court does not appear to be selecting judges hearing gay-rights cases in a neutral way.

The Coalition for Protection of Marriage questioned the neutrality of the San Francisco-based 9th U.S. Circuit Court of Appeals in a petition (PDF) filed on Monday seeking an en banc rehearing, report SCOTUSblog and BuzzFeed News. The Nevada-based group is defending the gay-marriage ban after Nevada officials determined they could no longer do so.

The petition says appeals judges Marsha Berzon (appointed by President Bill Clinton) and Stephen Reinhardt (appointed by President Jimmy Carter) have served on panels deciding gay-rights cases in disproportionate numbers. Both were on the panel that struck down Nevada’s gay-marriage ban, applying heightened scrutiny.

Since the beginning of 2010, Berzon has served on appellate panels in five of 11 cases involving federal constitutional issues of gay rights, while Reinhardt has served on four. “Statistical analysis demonstrates that the improbability of such occurring randomly is not just significant but overwhelming,” the petition said. “Thus, the odds are 441-to-1 against what we observe with the relevant cases.”

Meanwhile, 18 active 9th Circuit judges have never served on an appeals panel in a gay-rights case, the petition says.

Forty-five judges are currently listed on the 9th Circuit’s website as active circuit judges, and more than 3,600 opinions were issued during the time period in question.

“The appearance of unfairness is not a close question here,” the petition says. “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.”

Updated at 10:57 a.m. to add the number of currently active judges and number of cases decided during that time period.