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Group petitions for rehearing of same-sex marriage case

CARSON CITY — The Coalition for the Protection of Marriage on Monday filed a petition with the 9th Circuit Court seeking a rehearing on the Nevada same-sex marriage case by the full court.

The petition argues that the assignment of the case to the three-judge panel that ruled on Oct. 7 was “not done through a neutral process but rather was done in order to influence the outcome in favor of the plaintiffs.”

Coalition President Todd Larkin said last week the group, which got the ban on same-sex marriage on the ballot and approved by voters in 2002, would continue to fight the ruling.

Judges Stephen Reinhardt, Ronald Murray and Marsha Berzon served on the panel that ruled unanimously to overturn the bans on same-sex marriage in Nevada and Idaho.

Nevada clerks began issuing same-sex marriage licenses on Thursday when the decision took effect.

The petition alleges bias in the selection of Berzon and Reinhardt for the panel that heard the Nevada case.

Coalition attorney Monte Neil Stewart said in the petition that an attached analysis “shows a substantial and significant bias in the selection process … .”

“Judges Reinhardt and Berzon are publicly perceived to be favorably disposed to arguments for expanding the rights of gay men and lesbians, more so than all or nearly all other judges in this circuit,” the petition says.

Carl Tobias, a Williams Professor at the University of Richmond School of Law and a former Boyd School of Law faculty member, said he was surprised by the allegation.

“I would be very surprised if that had happened at the 9th circuit,” he said. “Given what I know of the judges and administrators, it is extremely unlikely.”

Jon Davidson, legal director for Lambda Legal, which brought the challenge to Nevada’s ban on behalf of eight same-sex couples, said the group is confident the petition will be rejected for a number of reasons.

The group’s arguments have been rejected repeatedly, including in decisions in three other circuit courts that the U.S. Supreme Court just last week let stand, he said.

There is also the lack of standing by the coalition, Davidson said.

“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,” he said.

Davidson also took issue with the claim of bias, which he called “unfounded, desperate, and sad.”

State Sen. Tick Segerblom, D-Las Vegas, an attorney who has been an advocate for overturning Nevada’s ban, said getting a rehearing before the entire court, known as an “en banc” hearing, is unusual.

“It’s very rare if there is no dissent on the panel,” he said. “Normally you would need someone on the panel to push for it and lobby the other judges. You also have to get a majority of the sitting judges, so getting an en banc hearing is extremely difficult.”

Tobias agreed, saying such requests are rare. The coalition would need to get 15 votes from the 29 active judges on the court.

“It is doubtful there are 15 votes for it on the 9th circuit as it is constituted right now,” he said.

In its filing, the coalition also said the panel’s reliance on a decision in a separate 9th circuit case requiring “heightened scrutiny” of such issues conflicts with rulings from nearly all other circuit courts and the U.S. Supreme Court as well.

“The constitutionality of man-woman marriage is a question of historic importance,” the petition says. “Deciding that question based on a legal standard never endorsed by the Supreme Court for claims of sexual orientation discrimination and at odds with the rational basis standard applied by virtually every other circuit in the country was plainly erroneous.”

Larkin said last week that the coalition would seek both an en banc rehearing and a review at the U.S. Supreme Court if necessary in its effort to sustain the state’s same-sex marriage ban.

“Man-woman marriage is constitutional,” Larkin said in a statement. “The coalition is confident that, in the end, the constitutionality of man-woman marriage will be upheld.”

Contact Sean Whaley at swhaley@reviewjournal.com or 775-687-3900. Find him on Twitter: @seanw801.

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