Opponents of Marriage Equality Resort to Judicial Version of Vote Suppression

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Monte Stewart, the lawyer for the Coalition for the Protection of Marriage claims the panel that ruled against Nevada’s ban on marriage equality was rigged “in order to influence the outcome in favor of the plaintiffs.”

To support the claim, Stewart offers his personal opinion of two judges on the panel in the form of an “affidavit”

Based on my many years of scholarly work on the genderless marriage issue (beginning with my intense studies of the subject at Oxford University in 2003 and 2004), on my work with a large number of appellate courts over the decades, and on my many years of direct involvement with litigation of the genderless marriage issue, I have concluded that: experienced Ninth Circuit practitioners familiar with the genderless marriage issue would uniformly prefer this panel over almost any other possible panel if their client were one of the plaintiffs in the Nevada and Idaho marriage cases, and, if their client were on the man-woman marriage side, would very likely conclude this panel to be among the least favorable possible for their client; and such preferences and conclusions are known and understood by all at the Ninth Circuit involved with the judge-assignment process.

To support his opinions, Stewart relied on the “careful statistics” of James H. Matis to prove a “high likelihood that the number of Judges Reinhardt and Berzon’s assignments to the Relevant Cases, including this and the Hawaii and Idaho marriage cases (which we treat as one for these purposes), did not result from a neutral judge-assignment process.”

In short, Stewart argues that because judges on the panel have ruled differently from what he thinks the law should be, that means the judges are biased. Therefore, he wants an en banc hearing in the name of vindicating “the values and integrity of [the appeals court’s] own judge-assignment process.”

Of course, this is bunk, but then bunk is all opponents of marriage equality have. It isn’t a question of bias. It’s a question of law. Even Supreme Court Justice Antonin Scalia, hardly a liberal, hardly an advocate for marriage equality saw rulings like this one coming when the Supreme Court ruled the Defense of Marriage Act is unconstitutional. In his dissent, Scalia wrote:

“The real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow,” Justice Scalia wrote, “is that DOMA is motivated by ‘bare . . . desire to harm’ couples in same-sex marriages.”

“How easy it is… “indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”

In reality, Stewart and the team of lawyers seeking to uphold Nevada’s ban on marriage equality are seeking a judicial form of vote suppression by seeking to invalidate the integrity of opponents to their ideological agenda. The question is how do they invalidate the rulings by other courts that addressed similar laws and how do they invalidate Justice Scalia’s dissent conceding that opponents of marriage equality lost the legal war?

Image: Freedom To Marry