Nevada anti-gay group accuses Ninth Circuit of rigging the system

Timothy Kincaid

October 13th, 2014

In my professional life I work in a legal environment. And over time I have observed that one sure-fire way to guarantee that you will be treated harshly is to accuse a judge of impropriety. Even if a judge has made a clerical error, attorneys will go out of their way to not appear to be critical, following the first rule of litigation: ‘don’t piss off the judge’.

Which makes an appeal by Nevada’s Coalition for the Protection of Marriage particularly interesting. In asking that the Ninth Circuit reconsider it’s marriage ruling by an en mass hearing, they adopted a fascinating strategy: accuse the Ninth Circuit of rigging the results.

Further — en banc review is regrettably necessary to cure the appearance that the assignment of this case to this particular three-judge panel was not the result of a random or otherwise neutral selection process. Troubling questions arise because a careful statistical analysis reveals the high improbability of Judge Berzon and Judge Reinhardt being assigned to this case by a neutral selection process. The attached statistical analysis, Exhibit 3, explains that since January 1, 2010, 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 (“Relevant Cases”), far more than any other judge and far more than can reasonably be accounted for by a neutral assignment process. Indeed, 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 Case — the two most assigned judges receiving under a neutral assignment process five and four assignments respectively (and anything more extreme).

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. But the sensitivity of raising uncomfortable questions for this Circuit must be balanced against the interests of ordinary Nevadans, who deserve a fair hearing before a novel interpretation of constitutional law deprives them of the right to control the meaning of marriage within their State. 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. Measures have been put in place by this Court to assign judges through a neutral process. But in this case the appearance is unavoidable that those measures failed. 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.

Yeah… that’s not going to end well for them.

jpeckjr

October 13th, 2014

I contend, therefore, that a panel made up entirely of judges who are married to persons of the opposite gender cannot be impartial. Their personal decisions to marry in this way indicate a bias inherently against same gender marriage.

NancyP

October 13th, 2014

Given their unfamiliarity with scientific method, I would assume that the antis are equally unfamiliar with statistics.

John Appiah-Duffell

October 13th, 2014

“You know, the most amazing thing happened to me tonight… I saw a car with the license plate ARW 357. Can you imagine? Of all the millions of license plates in the state, what was the chance that I would see that particular one tonight? Amazing!”

-Richard Feynman

enough already

October 13th, 2014

Wow.
Sigh.
I spent seven years and invested serious effort into learning rigorous fields of math and fail to see the connection here.
Damn, even took my degree magna cum laud.
So – some four year old child care to explain this to me?
Sheesh.

Sir Andrew

October 13th, 2014

“Um, with all due respect to the Ninth Circuit, we believe you all are liars and cheats who hate God. Of course, we mean that in the nicest way possible. And if you don’t give us our way, we’re going to tell everyone that you don’t play fair and everyone should avoid you because you have cooties. So there!”

How does this group even have standing to file this appeal? Just because they hate gays and marriage equality doesn’t give them a place in the judicial part of this debate.

Hunter

October 14th, 2014

I think the antis have gotten so used to flailing around looking for something — anything — to do to keep this alive that they’ve stopped thinking about what it is that they’re doing.

Nathaniel

October 14th, 2014

“…deprives them of the right to control the meaning of marriage within their State.”

I’ve been wondering how straight people are harmed by marriage equality. Now I see. We are rudely depriving them of the right to define our marriages for us. How selfish of us.

Also, while this group may not have standing, they have set themselves up for a win-win scenario. Either they piss the judges off enough to give them a hearing anyway, or they piss them off enough to get a rude refusal. If the latter occurs, then they can take that back to their supporters as evidence of the Court’s unfairness. This could drive voters and shift an election or two, easily.

Randy

October 14th, 2014

Wow… This is a very biased statistical analysis.

First of all in the statistics presented to the court there are two ways of the statistics are calculated, the first gives a 1/60 and the second gives the cited 1/441. To calculate the 1/60 chance of this particular set being selected, judge’s schedules and calendars were taken into account. Very reasonable from a statistics viewpoint.

The second way of calculating it through out those assumptions and came up with the entirely predictable 1/441 which is 1/21*1/21 or the probability that any particular judge (say Berzon) is picked out of the 21 judges on the court (this is done twice since you are picking two judges).

So with regards to the first (and much more valid in my opinion) analysis of an improbability factor of 1 in 60, recall there are 21 judges on the panel. If we assume they would have complained regardless of which judge had been on 5 panels rather than just Benzon, we are reduced to a less than 1 in 3 chance of this happening.

Yeah, this statistical analysis is poorly done by a professor emeritus (semi retired) of statistics who no longer has to worry about his reputation. It is just sad.

Priya Lynn

October 14th, 2014

Thanks for that Randy.

Leave A Comment

All comments reflect the opinions of commenters only. They are not necessarily those of anyone associated with Box Turtle Bulletin. Comments are subject to our Comments Policy.

(Required)
(Required, never shared)

PLEASE NOTE: All comments are subject to our Comments Policy.

 

Latest Posts

The Things You Learn from the Internet

"The Intel On This Wasn't 100 Percent"

From Fake News To Real Bullets: This Is The New Normal

NC Gov McCrory Throws In The Towel

Colorado Store Manager Verbally Attacks "Faggot That Voted For Hillary" In Front of 4-Year-Old Son

Associated Press Updates "Alt-Right" Usage Guide

A Challenge for Blue Bubble Democrats

Baptist Churches in Dallas, Austin Expelled Over LGBT-Affirming Stance

Featured Reports

What Are Little Boys Made Of?

In this original BTB Investigation, we unveil the tragic story of Kirk Murphy, a four-year-old boy who was treated for “cross-gender disturbance” in 1970 by a young grad student by the name of George Rekers. This story is a stark reminder that there are severe and damaging consequences when therapists try to ensure that boys will be boys.

Slouching Towards Kampala: Uganda’s Deadly Embrace of Hate

When we first reported on three American anti-gay activists traveling to Kampala for a three-day conference, we had no idea that it would be the first report of a long string of events leading to a proposal to institute the death penalty for LGBT people. But that is exactly what happened. In this report, we review our collection of more than 500 posts to tell the story of one nation’s embrace of hatred toward gay people. This report will be updated continuously as events continue to unfold. Check here for the latest updates.

Paul Cameron’s World

In 2005, the Southern Poverty Law Center wrote that “[Paul] Cameron’s ‘science’ echoes Nazi Germany.” What the SPLC didn”t know was Cameron doesn’t just “echo” Nazi Germany. He quoted extensively from one of the Final Solution’s architects. This puts his fascination with quarantines, mandatory tattoos, and extermination being a “plausible idea” in a whole new and deeply disturbing light.

From the Inside: Focus on the Family’s “Love Won Out”

On February 10, I attended an all-day “Love Won Out” ex-gay conference in Phoenix, put on by Focus on the Family and Exodus International. In this series of reports, I talk about what I learned there: the people who go to these conferences, the things that they hear, and what this all means for them, their families and for the rest of us.

Prologue: Why I Went To “Love Won Out”
Part 1: What’s Love Got To Do With It?
Part 2: Parents Struggle With “No Exceptions”
Part 3: A Whole New Dialect
Part 4: It Depends On How The Meaning of the Word "Change" Changes
Part 5: A Candid Explanation For "Change"

The Heterosexual Agenda: Exposing The Myths

At last, the truth can now be told.

Using the same research methods employed by most anti-gay political pressure groups, we examine the statistics and the case studies that dispel many of the myths about heterosexuality. Download your copy today!

And don‘t miss our companion report, How To Write An Anti-Gay Tract In Fifteen Easy Steps.

Testing The Premise: Are Gays A Threat To Our Children?

Anti-gay activists often charge that gay men and women pose a threat to children. In this report, we explore the supposed connection between homosexuality and child sexual abuse, the conclusions reached by the most knowledgeable professionals in the field, and how anti-gay activists continue to ignore their findings. This has tremendous consequences, not just for gay men and women, but more importantly for the safety of all our children.

Straight From The Source: What the “Dutch Study” Really Says About Gay Couples

Anti-gay activists often cite the “Dutch Study” to claim that gay unions last only about 1½ years and that the these men have an average of eight additional partners per year outside of their steady relationship. In this report, we will take you step by step into the study to see whether the claims are true.

The FRC’s Briefs Are Showing

Tony Perkins’ Family Research Council submitted an Amicus Brief to the Maryland Court of Appeals as that court prepared to consider the issue of gay marriage. We examine just one small section of that brief to reveal the junk science and fraudulent claims of the Family “Research” Council.

Daniel Fetty Doesn’t Count

Daniel FettyThe FBI’s annual Hate Crime Statistics aren’t as complete as they ought to be, and their report for 2004 was no exception. In fact, their most recent report has quite a few glaring holes. Holes big enough for Daniel Fetty to fall through.