5:16 PM: A federal judge who overturned Proposition 8 last year was not required to disqualify himself because he is in a long-term gay relationship, another jurist ruled in San Francisco today.
Chief U.S. District Judge James Ware this afternoon turned down a bid by Proposition 8 sponsors for the nullification of now-retired U.S. District Judge Vaughn Walker’s 2010 ruling that the same-sex marriage ban is unconstitutional.
They had argued that Walker could benefit from his own ruling because he might want to marry someday.
“It is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law solely because, as a citizen, the judge could be affected by the proceedings,” Ware wrote.
The decision leaves Walker’s ruling intact while proceedings shift back to the 9th U.S. Circuit Court of Appeals, where the Proposition 8 sponsors are seeking to appeal Walker’s conclusions.
If Ware had invalidated Walker’s decision, the appeal would have been moot and there would instead have been a new trial on a lawsuit filed by two same-sex couples in 2009.
The appeals court has stayed Walker’s ruling during the appeal, leaving the 2008 measure in place for the time being.
Proposition 8’s sponsors and their committee, Protect Marriage, claimed in papers filed in April that Walker had a conflict of interest because the existence of his long-term relationship raised the possibility that he might want to wed his partner.
Walker publicly disclosed this spring, after retiring, that he had a 10-year relationship with a male physician, but said he saw no need to have stepped down from the case. He has not stated publicly whether he may ever want to marry.
Charles Cooper, a lawyer for Protect Marriage, said the group’s legal team “obviously disagrees with today’s ruling.”
“Our legal team will appeal that decision and continue our tireless efforts to defend the will of the people of California to preserve marriage as the union of a man and a woman,” he said.
Theodore Boutrous, a lawyer for the two same-sex couples who filed the suit, said “This is a powerful ruling that makes it clear that gay and lesbian judges are entitled to the same assumptions of impartiality as all other federal judges.
“Other courts will look to this ruling for many years to come,” Boutrous said.
Ware wrote that other federal courts have ruled that being a member of a particular segment of the population–such as a minority group, a religion or a gender–is not a reason for a judge to disqualify himself or herself from cases affecting that group.
He said that all citizens have an interest in the protection of constitutional rights.
“We all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right,” Ware wrote.
“To the extent that a law is adjudged violative (of the Constitution), enjoining enforcement of that law is a public good that benefits all in our society equally,” he said.
The judge said that ruling otherwise would “lead to a standard that required recusal of minority judges in most, if not all, civil rights cases.”
Ware said there was no evidence before the court that Walker intended to marry, and that requiring an inquiry into intimate personal information would be an intrusive process that could undermine public confidence in the integrity of judges.
Instead, Ware said, the case law set forth by the 9th Circuit provides that there is a presumption that a judge who has not stepped down from a case has considered the rules on disqualification and has decided that action is not necessary.
Proposition 8, enacted by California voters as a state constitutional amendment in November 2008, provides that “only marriage between a man and a woman is valid or recognized in California.”
Walker ruled in August that the measure violated the federal constitutional guarantees of equal treatment and due process.
The Proposition 8 sponsors’ appeal of that decision is currently on hold while the California Supreme Court decides whether the sponsors have the right to appeal under state law in view of the fact that the official defendants–Gov. Jerry Brown and Attorney General Kamala Harris–have refused to do so.
The state high court agreed to decide that issue at the request of the 9th Circuit, which said that a previous U.S. Supreme Court decision does not seem to allow such an appeal under federal law.
The California court is expected to hold a hearing on that question in September and rule by the end of the year, after which the case will return to the 9th Circuit.
Lt. Gov. Gavin Newsom, who as San Francisco mayor briefly allowed gay marriages in the city in 2004, said, “Today’s decision by Chief U.S. District Judge James Ware is another victory for the thousands of California couples, their families and friends who share the belief that the freedom to marry is a constitutional right for all Americans.”
Newsom’s plan to grant same-sex marriage licenses was blocked after about a month by the California Supreme Court, but the effort led to a five-year battle in the state court system over whether the California Constitution provided a right to gay and lesbian marriage.
That battle ended in 2009 when the state high court upheld voters’ right to amend the California Constitution with Proposition 8.
The dispute then moved to the federal courts after the two couples filed their lawsuit claiming that Proposition 8 violated the U.S. Constitution.
San Francisco City Attorney Dennis Herrera, who represented the city in both the state and federal cases, said, “Proponents’ motion was an attack on the integrity of former Chief Judge Vaughn Walker and rested entirely on innuendo and suspicion.
“The motion boiled down to a claim that a gay judge cannot fairly rule in a case that addresses the civil rights of gay and lesbian citizens. This same argument has been consistently rejected by the courts in cases presided over by judges who were African American, women, Jewish, Catholic or disabled,” Herrera said.
Kate Kendell, executive director of the San Francisco-based National Center for Lesbian Rights, said, “Judge Ware’s decision is a victory for everyone, because Judge Ware confirmed that all of us–not just LGBT Californians, or members of other minority groups–have an equal stake in seeing that the Constitution is upheld.”
In another ruling today, Ware rejected a request by the Proposition 8 sponsors to have the parties in the case return to the court their confidential copies of a videotape of a 12-day trial held before Walker in January 2010.
He said an order requiring Walker to return his copy was not needed because Walker voluntarily did so last month.
Ware also scheduled a hearing on Aug. 29 on a separate motion by the same-sex couples to have the recording made public.
Walker had initially planned to have the trial broadcast live in five other federal courthouses in four states, and eventually made available to the public on a government channel on YouTube.
But that plan was blocked at the start of the trial by a 5-4 ruling of the U.S. Supreme Court, which said the district court hadn’t allowed enough time for public comment on a rule change allowing such broadcasts. The local court later completed the comment process.
1:31 PM: A federal judge in San Francisco today denied a bid by the sponsors of Proposition 8 to have him nullify a decision that overturned California’s ban on same-sex marriage.
The sponsors of the voter initiative claim the original judge in the case, now-retired U.S. District Judge Vaughn Walker, had a conflict of interest because he has had a 10-year relationship with another man and might want to get married.
Walker ruled last year that Proposition 8 violates the U.S. Constitution.
That ruling is now being appealed, but Proposition 8 supporters have meanwhile claimed that Walker should have been disqualified from hearing the case because he had an obligation to disclose his relationship and to say whether he wanted to marry.
A lawyer for two couples who sued to block Proposition 8 argued that Walker’s ruling is being challenged simply because he is gay and said it is unfair to question his integrity.
U.S. District Judge James Ware heard two hours of arguments on the issue on Monday, and issued his decision this afternoon.
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