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Alaska, Idaho, Nevada and allegations the Ninth Circuit is biased toward gay marriage

SAN FRANCISCO, California - Alaska's Republican Attorney General Michael C. Geraghty late Monday filed an appeal of Sunday's gay-marriage ruling with the Ninth Circuit Court of Appeals.

As same-sex couples began marrying in Barrow, Alaska, the AG also asked for an emergency motion for a stay pending the appeal.

The emergency-motion request raised some eyebrows in legal circles when it stated that "(a) there is a reasonable likelihood the Ninth Circuit will rehear Latta v. Otter en banc [the Idaho case], the decision of which this Court relied upon heavily in its application of heightened scrutiny to Alaska's marriage laws; (b) there is a reasonable likelihood that a circuit split will develop in the very near future, leading to review by the Supreme Court of the important issue of whether traditional marriage laws violate the Constitution."

It also made court observers wonder if there is some collaboration going on between Alaska, Idaho and the anti-gay intervener in Nevada.

That's because Idaho's Republican AG Lawrence Wasden today asked for an en banc hearing of the Latta v. Otter marriage case. It appeared very convenient that Geraghty already knew what Idaho was doing on Monday.

And the anti-gay group, the Nevada-based Coalition for Protection of Marriage, which intervened in both the Idaho and Nevada marriage cases at the Ninth Circuit, lobbed a fireball at the Ninth Circuit when it accused the appellate court of lacking neutrality over gay marriage.

The outrageous charges by the Coalition appear to be sour grapes as well as an attempt to smear the reputation of the liberal-leaning Ninth Circuit.

Making the claims today was Monte Neil Stewart, an attorney from Boise, Idaho, who represented Idaho Gov. Butch Otter and Attorney General Lawrence Wasden in Latta v. Otter, as well as acted an intervener for the Coalition for the Protection of Marriage in the Nevada case, Sevcik v. Sandoval.

Stewart said a study of the Ninth Circuit judicial assignments -- which are made randomly by computer -- reflected a prejudice toward judges who favor marriage equality and oppose traditional marriage. He claimed the “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 study was done by James H. Matis, an emeritus professor of statistics at Texas A&M University. A quick Google search of Matis showed a handful of academic papers, including some that used statistics to rail against immigration issues. Mathis is a graduate of Brigham Young University, run by the Mormon Church, which raised millions of dollars to convince California voters to pass the ill-fated Proposition 8 that took away gay marriage rights in 2008. Just as the Coalition thinks the Ninth Circuit is biased, having a BYU graduate conducting a "statistical analysis" on marriage equality calls into question the validity and fairness of the survey.

Jon Davidson, Lambda Legal's Legal Director who was involved in the Nevada case, said in an email to a media group that he checked out the Coalition's complaints.

"I looked and the 9th circuit hears more than 6,000 appeals per year. If the Coalition is correct about the odds of this particular configuration of judges, then one might expect it to occur more than 13 times each year," he wrote.

"Is he saying those all were the result of something amiss? If not, why this one?

"I find it hard to very believe that the 9th Circuit would rehear the appeal based on these wild accusations. And, given that they did not grant rehearing in Perry (invalidating Prop 8) or SmithKline (applying heightened judicial scrutiny to government discrimination based on sexual orientation), I think the odds of a majority of active 9th Circuit judges granting review are less are -- well -- a far less good bet than getting the panel that was randomly assigned to our appeal."

And Tara L. Borelli, a senior attorney for Lambda Legal who earned praise for her skills at trial in the Nevada case, also weighed in.

"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," she said.

"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."

Ken Williams, Editor and Chief of San Diego Gay & Lesbian News, who watched the Idaho and Nevada oral arguments via livestream, added that he thought Stewart, the Coalition's attorney, provided one of the lamest defenses of "traditional marriage" and failed to show the court how opposite-sex marriage would be harmed by same-sex marriage.

In his news analysis, Williams wrote:

It was clear that Stewart had no real evidence to show the harm that is caused by gay marriage. All he could do is predict horrible things will happen if Idaho has gay marriage, such as the state will see a rise in “dad-less” or “mom-less” families. When Judge Berzon challenged him to cite evidence, Stewart fumbled through that question, citing numbers that showed that only about 58% of the state’s children came from a mom-dad family unit.

Judge [Ronald M.] Gould grew weary of the “child’s bonding right” argument, and asked Stewart where that “bonding right” came from since it was not in the Bill of Rights. Stewart then admitted that he made up the phrase to collectively describe his argument that a child does best when it has a mother and a father who are married.

Judge [Stephen] Reinholdt said if the state was so worried about marriage, shouldn’t it ban divorce? Stewart then launched into a diatribe against no-fault divorce, again veering far off the issue at hand.

Judge [Marsha S.] Berzon summed it up best when she told Stewart that the “train has already left the station” on marriage being redefined, using historical milestones to rebut his argument.