Issue:  Vol. 48 / No. 8 / 22 February 2018

Breaking: Judge refuses to vacate Prop 8 decision


U.S. District Court Chief Judge James Ware
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A federal judge has denied a motion to toss out the decision that overturned California's voter-approved same-sex marriage ban because the judge did not disclose he was in long-term relationship with another man.

U.S. District Court Chief Judge James Ware ruled Tuesday, June 14 that a new trial is not necessary because the initial judge in the case, retired U.S. District Court Chief Judge Vaughn Walker, had no reason to recuse himself because of his 10-year relationship with his partner, a male doctor.

"The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification," wrote Ware in his ruling, issued a day after he heard oral arguments in the matter.

Backers of the anti-gay ballot initiative, known as Proposition 8, had asked Ware to vacate the initial ruling and order a new trial to take place after Walker disclosed in an interview with reporters earlier this year that he is not only gay but in a committed relationship.

During the course of the 2010 trial the San Francisco Chronicle reported on Walker's sexual orientation. But the judge had not publicly discussed the matter until after he retired from the federal bench in January.

Lawyers for the two same-sex couples who sued the state in federal court over Prop 8 had argued that the attorney's for, the group behind the anti-gay measure, should have asked Walker to recuse himself last year. In court Monday they had argued that doing so after Walker had left the bench and could not answer the charges himself was both "frivolous and offensive."

But Ware wrote in his opinion that the motion to vacate was appropriately filed, though he described it as a "unique procedural posture" since Walker's ruling is now on appeal before the 9th U.S. Circuit Court of Appeals.

Nonetheless, Ware ruled that requiring Walker to recuse himself based on his relationship status would set an "unworkable recusal" precedent most judges would likely be unable to meet.

"Requiring recusal because a court issued an injunction that could provide some speculative future benefit to the presiding judge solely on the basis of the fact that the judge belongs to the class against whom the unconstitutional law was directed would lead to a Section 455(b)(4) standard that required recusal of minority judges in most, if not all, civil rights cases," he wrote.

He further stated that gay and lesbian judges are not the only ones who have a stake in the outcome of the case, and therefore, Walker has no greater benefit from the outcome than any other judge would.

"We all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right," wrote Ware.

He later wrote, "Although this case was filed by same-sex couples seeking to end a California constitutional restriction on their right to marry, all Californians have an equal interest in the outcome of the case. The single characteristic that Judge Walker shares with the plaintiffs, albeit one that might not have been shared with the majority of Californians, gave him no greater interest in a proper decision on the merits than would exist for any other judge or citizen."

The legal wrangling was the first time in the nation's history that a federal judge's sexual orientation had led to questions about their ability to be impartial in a case. Ware rejected any such suggestion that a gay or lesbian judge cannot be fair in cases dealing with LGBT litigants or issues.

"The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief," wrote Ware.

Ware's ruling comes nearly a year since Walker heard closing arguments in the case June 16, 2010. The matter is now on appeal before the 9th Circuit, where a three-judge panel is awaiting guidance from the California Supreme Court on whether has standing to bring forward the appeal.

State law does not specify if a ballot initiative's backers can defend it in court when the governor and the attorney general, who are tasked with doing so, refuse to and instead argue the measure should be struck down. Both Governor Jerry Brown and Attorney General Kamala Harris, like their predecessors, have told the appellate court Prop 8 is unconstitutional.

The state's highest court has set an expedited briefing schedule on the standing question and is expected to hear oral arguments this fall, possibly as soon as September. No matter how they decide, the lawsuit now known as Perry v. Brown, is expected to reach the U.S. Supreme Court.

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