June 14, 2011 at 11:45 pm EST | by Chris Johnson
Court won’t invalidate Prop 8 ruling over judge’s sexual orientation

A California federal court on Tuesday denied a request to invalidate a decision overturning the state’s ban on same-sex marriage based on the argument that the judge who decided the matter should have recused himself because he’s gay.

U.S. District Judge James Ware determined in his decision that retired U.S. District Judge Vaughn Walker’s sexual orientation isn’t a justification for recusal or disqualification in the case that will determine the constitutionality of Proposition 8, which California voters approved in 2008 to make a ban on same-sex marriage part of the state constitution.

“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 under Section 455(b)(4),” Ware writes.

Last year, Walker in a 135-page decision, determined that Prop 8 was unconstitutional because it violated equal protection rights in the U.S. Constitution. Months after he made the decision, Walker disclosed to the media earlier this year that he’s gay and has been in a same-sex relationship with a physician for 10 years.

Proponents of Prop 8 pounced on the reports and said Walker was unable to issue an impartial decision in a case deciding whether same-sex couples can marry because of his sexual orientation and his relationship.

But Ware denied in his decision that these personal characteristic were reason to invalidate Walker’s ruling and maintained that proponents of Prop 8 haven’t presented evidence that he would be impartial in his decision.

“A well-informed, thoughtful observer would recognize that the mere fact that a judge is in a relationship with another person — whether of the same or the opposite sex — does not ipso facto imply that the judge must be so interested in marrying that person that he would be unable to exhibit the impartiality which, it is presumed, all federal judges maintain,” Ware wrote.

Ware also disputed the argument that Walker should have disclosed his sexual orientation before he decided the case and maintained Walker “had a duty to preserve the integrity of the judiciary” and was justified in keeping his relationship to himself.

“Among other things, this means that if, in an overabundance of caution, he were to have disclosed intimate, but irrelevant, details about his personal life that were not reasonably related to the question of disqualification, he could have set a pernicious precedent,” Ware writes. “Such a precedent would be detrimental to the integrity of the judiciary, because it would promote, incorrectly, disclosure by judges of highly personal information (e.g., information about a judge’s history of being sexually abused as a child), however irrelevant or time-consuming.”

Chad Griffin, board president of the American Foundation for Equal Rights, the organization behind the lawsuit challenging Prop 8, praised Ware’s decision as a “historic victory” for justice and same-sex marriage.

“Chief Judge Ware’s ruling makes it very clear that bigotry and hatred have no place in our judicial system and that the anti-marriage forces’ extreme and unsupported antics have no place in a court of law and indeed, in our society,” Griffin said. “The freedom to marry is a constitutional right for all Americans and AFER will not rest until we have full marriage equality for all our citizens.”

Although Ware has issued a decision in the matter, proponents of Prop 8 say they’re not done with the issue. In a statement, Charles Cooper of Cooper & Kirk, lead counsel for ProtectMarriage.com, said his legal team disagrees with Ware’s ruling and will appeal the decision to a higher court.

“Our legal team will appeal this 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,” Cooper said.

In a separate decision issued on Tuesday, Ware settled the issue of whether video recordings of the trial in Walker’s possession should be returned to the court. Walker had used a three-minute videotape of the trial during a lecture, invoking the ire of those who worked to enact Prop 8 and said they didn’t want testimony during the trial viewed publicly.

But Ware says there is no indication that parties have violated the protective order by using their tapes in their possession and may hang on to them as the appeal in the case proceeds. Additionally, although Walker apparently gave the tapes back to the court, Ware plans to return them to Walker.

A request is still pending to unseal the recording and release them publicly. Ware set Aug. 29 for a hearing to decide whether the tapes should be unsealed and made public.

Even though Ware has upheld Walker’s decision by denying the motion to vacate, the case remains pending on appeal and Prop 8 remains in effect. The U.S. Ninth Circuit of Appeals has asked the California State Supreme Court to evaluate whether defendants have standing to appeal the case. Hearings are expected as early as September.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

  • I don’t understand these Prop 8 hypocrites. For a bunch of “so-called” straight men they spend an awful lot of time fixated on gay sex.

    I mean, I am a straight man…no doubt, no questions, no issues….and I don’t spend any time at all thinking about what to grown men do in their bedroom together.

    Go figure….

  • I figured out awhile ago that all this buzz is never about marriage. Not really. Its all about putting homos on trial (again). FYI, I dont like queers. Wont talk to them. Wont hang with them. They make me want to hurl. Thats just me. I’d be all over this except for 2 peeps – my girlfriend and my mother. When this started and we got into it, my girlfriend asks me point blank if a kneejerk is all I need to nail somebody. I knew I was on thin ice and I checked myself. Then I remember my mother talking to me after the first time I saw a retarded kid and it hits me. I hate queers. They do nothing to me and I still cook whenever I see them or they come up in convo. OK. Thats wrong and I’m raised better then that. Now everybodys twisted themselves up in nots over legal this and def that and you wont deal with what is. Are we going to let these peeps live like real peeps or not? Thats all this is.

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