October 14, 2014

"Arguing that the Ninth Circuit panel that ruled against the Nevada ban on same-sex marriage last week did not appear to have been selected by a neutral process..."

"... a private group in that state on Monday asked the full Ninth Circuit to reconsider that ruling to assure that the group got a fair hearing...."
The filing on Monday, citing an analysis done of gay rights cases in the Ninth Circuit since January 1, 2010, said that there have been eleven of those cases and that Judge Berzon sat on five and Judge Reinhardt on four. “Statistical analysis,” it said, “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.” There are eighteen active judges on that court who have never been assigned to a gay rights case, the motion said....

Conceding that the Ninth Circuit does have “a neutral process” for assigning judges to panels, the motion contended that, “in this case, the appearance is unavoidable that those measures failed.”
That is, the group — the Coalition for Protection of Marriage — isn't saying that that something underhanded happened, only that it unavoidably looks that way, and appearance matters and is a reason for en banc review.

Here's the PDF of the motion, which uses a term for same-sex marriage that I have never noticed before: "genderless marriage."

49 comments:

BarrySanders20 said...

Not content to lose 3-0, the People's Front of Judea seek an 18-0 loss.

Beldar said...

First: "Genderless marriage" is not a useful addition to the national vocabulary. "SSM" and "same-sex marriage" is fine and sufficiently neutral that both sides of the debate ought to stick to it.

Second: The Ninth Circuit is too damned big, and frankly hasn't done a good job of handling it. I am convinced that their practice of having the "en banc" Ninth Circuit sit in anything less than a group of all active-status sitting judges is profoundly wrong and disruptive to orderly development of precedent. I speak from the perspective of someone who clerked on the "old Fifth Circuit" that had 26 authorized active-status judges from Texas to Florida, and as someone whose judge wrote an en banc majority opinion when ended up being a 24/1 vote (one judge recused), so I know that even such an unwieldy en banc court can still do its job.

When and if the GOP retakes the WH and both chambers of Congress, it should split the Ninth. California's going to end up in federal receivership in a few years anyway, so it probably ought to just be its own circuit (which will have the effect of driving its reversal rate by the SCOTUS even higher until a lot of those California-based Ninth Circuit judges retire or die).

Henry said...

Nuts. The PDF is missing the math: "That careful analysis" by "Dr. Matis (“Report”), Exhibit 3."

The math is the only thing of any interest.

MadisonMan said...

There are eighteen active judges

I've read it three times, and each time my brain turns 'active' into 'activist'.

I question the statistics that are being used, as they appear to assume a normal distribution of cases, and I doubt that's true. If all Judges in the Ninth Circuit have equal amounts of work assigned, then maybe. Is that the case?

(The first link is bad. btw)

Michael K said...

Judge Reinhard is the "brains" of the Ninth Circuit and has swung it so far to the left that appeals are useless. His wife was the head of the ACLU for years. They are a pair.

Lyssa said...

What is the group's goal here? Do they think that the full panel could, in any way possible, come to a different decision? It's the Ninth Circuit, for crying out loud. I just don't understand the thinking here.

Roger Sweeny said...

Limitations on political contributions are justified by the appearance of impropriety. This seems equally ridiculous.

rhhardin said...

Improbability is as good as proof, in the sense that if you follow that rule, you don't make mistakes very often. So it will work pretty well.

The calculation of probability is tricky, though.

Anything that happens in enough detail is wildly improbable.

Dan from Madison said...

Dammit! I was all excited, and now I am with Henry. I wanted the math too.

Christy said...

Looks like cheating. I hate cheating. I hate cheating to accomplish other people's goals. I hate cheating to accomplish my goals. I also hate bullying. Between the cheating and bullying by same sex supporters, I am fast becoming an opponent.

The Drill SGT said...

Can't find the stats, but the thing sounds improbable.

The irony is that if the Left were arguing the same stats in a stop and frisk case, the Media would agree.

There are 18 cops on the force, half minorities, but these two white cops seem to get all the cases where the minority defendant gets aggressive and needs to be Tased...

imagine that...

tim maguire said...

I think they walk a tightrope fairly well. It's always tricky explaining to the judge that the problem is the judge.

tim maguire said...

Christy said...Between the cheating and bullying by same sex supporters, I am fast becoming an opponent.

What about the vast vast majority of gays who neither bully nor cheat? (Never mind the millions of straight supporters; for this question, it's only worth considering the ones who are directly affected.)

Unknown said...

At what point is a judge required to comply with law instead of opinions? What am I missing here?

traditionalguy said...

It's so over that it is boring to both opponents and supporters.

RecChief said...

"What is the group's goal here? Do they think that the full panel could, in any way possible, come to a different decision? It's the Ninth Circuit, for crying out loud. I just don't understand the thinking here. "


The point is more billable hours.

Mark said...

Nevada, asking to be the case that goes to the Supreme Court and puts its case in the history books as the one that legalized SSM in all 50 states.

Michael K said...

"What about the vast vast majority of gays who neither bully nor cheat?"

My contacts with some of them suggest they are not interested in gay marriage. It is the radicals who are pushing it and suing wedding cake bakers. It is just sad that judges seem to be allowing the right to be let alone be eliminated.

Steve Uhr said...

There was no appearance of impropriety prior to the filing of the brief cautioning there is an appearance of impropriety.

Christy said...

Tim Maguire, What about the vast vast majority of gays who neither bully nor cheat?

Mine is an admittedly emotional response, but isn't it a slippery slope? Voiding a law because we like most of the beneficiaries of overturning that law is no way to run a democracy. Do the ends here justify the means? Where does it stop?

RecChief said...

Just an observation, but it would be better if it was a political solution, rather than a judicial one, same sex marriage would probably be accepted by the population rather quickly. Court decisions, while they give partisans like Althouse the fleeting joy of spiking the football, don't really end anything as evidenced by Roe. The inability to see follow on effects of actions is an inability that continually amazes me.

Tom Hargrove said...

After a quick Google search, I believe this is the exhibit for the case:

Exhibit3

The examination of bias begins on page 21.

Fernandinande said...

Henry said...
Nuts. The PDF is missing the math: "That careful analysis" by "Dr. Matis (“Report”), Exhibit 3."


The tables are here:
https://www.scribd.com/doc/242856856/12-17668-274

Revenant said...

if it was a political solution, rather than a judicial one, same sex marriage would probably be accepted by the population rather quickly.

It has gone from 39% to 54% support in five years. That's pretty quickly.

Henry said...

It is the radicals who are pushing it and suing wedding cake bakers.

If you are a wedding cake baker, what are the odds? Seriously, how many bakers are being shut down by the gay mafia?

Google pulls up ...

3

That's just from the first page of results. I'm sure there are more -- probably tens or hundreds more -- but I suspect the odds are still very very very long.

Outside of the math of all the lawsuits divided by all the bakers, the legal issue is not directly about gay marriage. It is about public accommodation. The law says you can't turn away customers based on sexual orientation. The fact that the customer asked for a specific kind of cake doesn't matter. It is the baker that assigns special meaning to the wedding cake. The law doesn't care.

I'm not on the side of people who file unnecessary lawsuits, but I'm also not impressed by claims that the sky is falling based on the same fistful of acorns every time.

Revenant said...

Skimming the statistical summary, it doesn't appear that he is computing the odds of two judges being assigned a disproportionate number of times. He's computing the probability that those two particular judges were assigned at least that many times.

With 18 judges and 306 possible two-person pairings, the odds of at least one achieving a 1-in-441 chance are almost exactly 50%.

Henry said...

Thanks Tom; Thanks Ferdinand;

I'm a math layman, but I find something interesting in that the odds are specifically calculated for the presence of the members of a "group of interest" -- Judge Berzon and Judge Reinhardt -- on a set of cases selected by the lawyer for analysis.

However, the lawyer knows ahead of the analysis which cases to select for analysis and who to include in the "group of interest". Testing specifically for the presence of two specific judges -- as opposed multiple appearances by any group of judges -- creates very long odds.

If some other judge on the circuit appeared on 5 of the cases and voted the same way as Judge Berzon, the odds of that happening would also be calculated to be quite long, as long as that judge was swapped into Judge Berzon's place in the "group of interest."

A story: Once Napoleon was travelling through a small village and saw a wall chalked all over with circles. In the exact center of each circle was a bullet hole. "Marvelous shooting!" he cried. "Who in this town shoots with such accuracy?" The townspeople shuffled their feet and refused to answer. Finally, they pushed forward a small boy with a rusty musket. "You!" exclaimed Napoleon. "A boy with a musket? Tell me. What is your secret?"

"Well," said the boy. "First I shoot at the wall. Then I take a piece of chalk and draw a circle around the place I hit."

Revenant said...

Google pulls up... 3

More importantly, the people in question ran afoul of democratically-enacted state laws. It isn't a question of activist judges thwarting the will of the people -- it is a question majorities imposing their moral views on minorities.

Now, personally, I think that's wrong. But most people on both the left and right are A-OK with fining or jailing people for victimless crimes against morality (see, e.g., Scalia's dissent in Lawrence v. Texas).

RecChief said...

"Revenant said...
if it was a political solution, rather than a judicial one, same sex marriage would probably be accepted by the population rather quickly.

It has gone from 39% to 54% support in five years. That's pretty quickly.
"


Yet, how do all of these statutes pass? presumably, state legislators have to stand for re-election and what about the referendums? I'm wondering if that 54% is simply because the waves of propaganda? for a while there, every new TV show had its token gay man.

Mark said...

"The fact that the customer asked for a specific kind of cake doesn't matter."

I don't think that's exactly it.

My acoustic music group doesn't play weddings, we all prefer to have Saturday for our family.

No one will sue us over the fact we will not play a SSM wedding because we don't do any weddings and the response does not depend on the genders of who asks.

If a bakery does not do wedding cakes then no one will sue them. If a photographer doesn't shoot weddings, no one will sue them.

The problem here is a business deciding to serve the wedding market and then having an issue with some weddings.

That seems like how the courts have considered it.

Henry said...

Mark wrote: The problem here is a business deciding to serve the wedding market and then having an issue with some weddings.

Well put. One of the links Google found for me was to this Scott Shackford article at Reason.Shackford quotes Portland station KOIN:

Since 2007, Oregonians have filed 11 complaints of unlawful discrimination in public places under the 2007 equality law. BOLI found no substantial evidence in five of those complaints but parties negotiated settlements in three other cases, including one this past week where a bar was fined $400K for keeping transgenders away.

Not an epidemic of lawsuits, Shackford notes. And there is not likely to be one with wedding cakes thrown into the mix either, I suspect.

Bob Ellison said...

It sounds like a first-derivative response to the conjecture of disparate-impact argument.

Next up: integration!

jr565 said...

Mark wrote:

The problem here is a business deciding to serve the wedding market and then having an issue with some weddings.

That seems like how the courts have considered it.

but in the state where this was an issue I don't think they had even legalized gay marriage yet. So then yore faced with a govt that doesn't recognize it punishing a company that similArly doesn't.
And what about if the wedding in question was a plural one. And the baker said they'd only bake a cake for a traditional marriage. Would the govt hold them accountable for discrimination if they too discriminate against, say, harems?

Michael K said...

"If a bakery does not do wedding cakes then no one will sue them. If a photographer doesn't shoot weddings, no one will sue them.

The problem here is a business deciding to serve the wedding market and then having an issue with some weddings. "

So, if you want a bride and groom naked on top of the cake, I can't say no ? These suits are intended to terrorize religious people. I wonder if the plaintiffs tried other bakers before they found one they couple sue ?

Once again, I don't care about gay marriage. I do care about freedom.

Revenant said...

Yet, how do all of these statutes pass?

Improper use of present tense.

Virtually all of the bans were enacted between 2000 and 2008, when the majority of the public was still against gay marriage. Since then, there have been two attempts at amendments to ban gay marriage. One succeeded (North Carolina) and one failed (Minnesota).

That was the reason for the rush to pass amendments permanently banning something that was, at the time, already "banned" -- the people knew that public opinion was shifting, and wanted to lock in gay marriage bans while they still had the votes.

Revenant said...

but in the state where this was an issue I don't think they had even legalized gay marriage yet. So then yore faced with a govt that doesn't recognize it punishing a company that similArly doesn't.

No, that wasn't the issue. The company wasn't being asked to "recognize" a marriage. The company was being asked to bake a cake. They just didn't like what the buyers planned to do with the cake.

I'd argue that businesses should be allowed to refuse service to anyone for any reason -- but they haven't been allowed to do that in this country since long before I was born.

MadisonMan said...

So, if you want a bride and groom naked on top of the cake, I can't say no ?

Here's the cake. Put whatever you want on top.

Why should a baker care about that? Talk about control freak if they do!

Mark said...

"So, if you want a bride and groom naked on top of the cake, I can't say no ?"

You can draw whatever lines you want, you just cannot offer unequal product lines to couples of the same gender.

Don't want naked people on top? Don't do it. But don't expect to do naked hetero couples and be able to refuse naked gay couples.

It's really not that hard. You cannot discriminate against people based on skin, religion, or gender when you offer services to the public.

And jr, it doesn't matter whether SSM is legal in a state - discrimination is discrimination. Sorry, but the whole marriage amendment strategy in many cases put it in legislative record that the purpose was to discriminate against a disliked group. As Rick Perry says, `Oops'.

RecChief said...

"Revenant said...
Yet, how do all of these statutes pass?

Improper use of present tense.

Virtually all of the bans were enacted between 2000 and 2008, when the majority of the public was still against gay marriage. Since then, there have been two attempts at amendments to ban gay marriage. One succeeded (North Carolina) and one failed (Minnesota).

That was the reason for the rush to pass amendments permanently banning something that was, at the time, already "banned" -- the people knew that public opinion was shifting, and wanted to lock in gay marriage bans while they still had the votes."

So, if that;s the case, it would seem to me that they could be reversed at the ballot box as well. But then, proponents would actually have to have a discussion, an argument, rather than simply falling back on "that's homophobic" as the first reply to anyone who disagrees. There are some who will not be swayed no matter the argument. You can say it's hard, and you'd be right, but I don't think they actually want to convince anyone, and they sure don't want to open up the discussion around Civil Unions, instead, they'd rather preen about how morally superior they are while screaming epithets at religious folk who disagree with them.

Henry said...

For the record, the Napoleon story is not mine. I can't recall where I came across it. Perhaps one of Nassim Taleb's books. Perhaps not.

I hope the point is clear. The problem is that the lawyer knows ahead of time which of the many judges on the circuit are the ones that match the parameters he gives the statistician. So the lawyer can get very specific with his test and increase the odds of an outcome (one of many long-shot outcomes) that he has already found in the data.

What do you want to bet me that Randal Grichuk hit a home run today for the Saint Louis Cardinals?

You better check the time stamp on this comment.

rcocean said...

Lets see, its all random yet the two most left-wing judges don't come up 1/11 times but 5/11 or 6/11 times.

Yep, seems unlikely. Its like going to LV and betting on "0" "OO" and "32"and winning 11 out of 22 times at Roulette.

Revenant said...

So, if that;s the case, it would seem to me that they could be reversed at the ballot box as well.

In some places they have been. Support for gay marriage isn't as strong, yet, as opposition to it was during the Bush years.

In the meantime, why wait? Laws are supposed to have a rational basis, and gay marriage bans don't.

RecChief said...

see, this is the kind of shit you get when you don't reach a political solution. When you think you've become ascendant because of the courts, and forcing what you want on others. bakers today, pastors tomorrow.

Revenant said...

But then, proponents would actually have to have a discussion

Again, if you were genuinely interested in "a discussion" you wouldn't have tried amending state and federal constitutions to ban it.

That's an action people take when they consider the discussion over, and want the topic as removed from future political debate as a topic can be made to be.

Revenant said...

bakers today, pastors tomorrow.

Good grief, not that steaming load of bullshit again.

A bakery corporation violated a state ban on corporate discrimination against homosexuals. There is no ban, at either the state or federal level, on religious discrimination. The owners of the bakery tried to claim that their religious freedom was being infringed. That was rejected as the obvious lie that it was; nothing in Christianity forbids baking a cake for a gay person.

For the nation's entire history, churches have recognized marriages that state and federal governments don't, and vice-versa. Even back when there were entire political parties hating Catholics, the courts still didn't force churches to perform marriage ceremonies that violated Catholic doctrine.

Anyone who thinks they're going to suddenly, out of the fuckin' blue, declare that there is a Constitutional right to force priests to perform religious ceremonies in violation of their own beliefs, has let their hatred and fear of homosexuality overcome their capacity for reason.

Babaluigi said...

"bakers today, pastors tomorrow.

Good grief, not that steaming load of bullshit again...."

Well, it looks like tomorrow has arrived!:

(as per the Houston Chronicle...)
"...Houston's embattled equal rights ordinance took another legal turn this week when it surfaced that city attorneys, in an unusual step, subpoenaed sermons given by local pastors who oppose the law and are tied to the conservative Christian activists that have sued the city.

Opponents of the equal rights ordinance are hoping to force a repeal referendum when they get their day in court in January, claiming City Attorney David Feldman wrongly determined they had not gathered enough valid signatures to qualify for the ballot. City attorneys issued subpoenas last month during the case's discovery phase, seeking, among other communications, "all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession."..."

I don't care if if it is part of discovery or any other excuse, ...it did not even take that long to become reality, did it?...

damikesc said...

Again, if you were genuinely interested in "a discussion" you wouldn't have tried amending state and federal constitutions to ban it.

Using the political process, like it or not, IS having the discussion.

Using lawyers in robes is not.

If gay marriage has such high support, then go through the political process to achieve it.

Fen said...

"What about the vast vast majority of gays who neither bully nor cheat?"

The peaceful majority is irrelevant

https://www.youtube.com/watch?v=iI74lOgfxk4

Fen said...

Rev: "That was rejected as the obvious lie that it was; nothing in Christianity forbids baking a cake for a gay person."

You are lying again. Why?

1) the baker had already made many cakes for the gay couple without any objections

2) what he objected to was making a WEDDING cake for them, because it violated his moral conscience by making a mockery of marriage, same way making a "divorce celebration cake" would have.

Maybe if we simplified it for you:

Jewish seamstress cannot be forced to turn away neo-nazi customers, but she CAN refuse to make them Gestapo uniforms.