At 10 AM on Monday, Dec 6, sponsors of Proposition 8 will appeal August’s ruling by U.S. District Judge Vaughn Walker to strike down the same sex marriage ban. Those same sponsors are now expressing concerns that one of the judges won’t be able to be unbiased in his ruling, and are asking that he step away from the case.
As you know, a panel of three 9th U.S. Circuit Court of Appeals judges was randomly assigned to hear the arguments several months ago, but their names were not disclosed until a week before the hearing, a court policy, says the Chron, designed to limit the parties’ ability to seek grounds to disqualify the judges.
But that policy failed this time around, as sponsors of the same sex marriage ban are asking Judge Stephen “liberal badboy” Reinhardt to recuse himself from the case, saying that his “impartiality might reasonably be questioned” because his wife, Ramona Ripston, will be the Executive Director of the ACLU of Southern California until her February 2011 retirement.
According the the ban supporters, Ripston has been an outspoken opponent of Proposition 8 and has worked to overturn the ban. The pro Prop 8 folks also noted that Reinhardt had recused himself from other ACLU-focused cases.
Reinhardt acknowledged that there were several other cases where he had recused himself when “warranted by circumstances,” such as a recent case regarding rendition of terrorism suspects, but said that in this case “I will be able to rule impartially on this appeal, and I will do so.”
Proposition 8 author and attorney Andy Pugno said that the anti-gay marriage side will let things go at that, saying “we accept Judge Reinhardt’s decision and plan no further action…but we felt we had no choice but to ask him to remove himself in light of his wife’s extensive involvement in this very case.”
Professor Stephen Vladeck, who was once a clerk on the 9th Circuit before joining the faculty at American University’s law school, sees this move to dump Reinhardt as a strategic step towards bringing this case to the US Supreme Court, should the anti-gay forces lose this round, too.
“The more that Prop 8 supporters can sort of draw attention to his role, I think the better the chances are of getting the Supreme Court to ultimately take the case,” Vladeck told KCBS.
This, of course, isn’t the first time that pro Prop 8 folks have argued that a judge’s romantic relationships might might impact his abilities to rule impartially on this issue. In an Op-Ed in the Chronicle reacting to Walker’s ruling striking down the marriage ban, law professor John C. Eastman argues that, since rumored-to-be-gay (according to Eastman) U.S. District Judge Vaughn Walker “‘attends bar functions with a companion, a physician,’ and may therefore be in a stable homosexual relationship of the kind that could lead to marriage,” he should have recused himself. (You can see our response here.)
There’s an interesting rain on your wedding day type irony in how these arguments all circle around who is married to whom, or who else might get married to someone else. God. Maybe we should just get rid of the whole godamned thing.