Gay judge’s decision on Prop. 8 can stand 

The federal judge who overturned California’s ban on same-sex marriage did not have to step down from the case simply because he was a gay man presiding over a matter that affects homosexuals, another judge ruled Tuesday.

Chief U.S. District Judge James Ware rejected a motion by attorneys for the sponsors of Proposition 8 asking to vacate retired federal Judge Vaughn Walker’s 2010 ruling. Published reports after Walker’s 2011 retirement quoted him as saying he is in a 10-year relationship with another man.

The attorneys argued that Walker could have benefited from his ruling and should have disclosed his relationship status, and whether he intended to marry, before last year’s trial.

Attorneys representing same-sex couples in the case lambasted the motion Monday as "frivolous, offensive and deeply unfortunate," and argued there was no legal basis to support it.

In his denial, Ware wrote that Walker need neither recuse himself from the case nor be disqualified from it.

"The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself," Ware said.

"It is not reasonable to presume," Ware said, "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 said requiring judges to recuse themselves in cases like this, where they could theoretically gain some future benefit, would lead to a standard requiring the same recusal for minority judges in civil rights cases.

"Congress could not have intended such an unworkable recusal statute," he wrote.

City Attorney Dennis Herrera, whose office has participated in the case, issued a statement praising Ware’s ruling.

"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," Herrera said. "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."

Charles Cooper, the attorney who argued the motion to disqualify Walker’s decision, issued a statement saying his team would appeal Ware’s ruling "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."

Prop. 8 sponsors have separately appealed Walker’s Aug. 4 ruling before the 9th U.S. Circuit Court of Appeals.


Proposition 8: A long and winding road

  • Nov. 5, 2008: Proposition 8, declaring same-sex marriage in California illegal, passes with 52 percent of the vote.
  • May 27, 2009: Two same-sex couples file lawsuit challenging Prop. 8 in federal court in San Francisco.
  • Jan. 11, 2010: Federal trial before U.S. District Court Judge Vaughn Walker begins.
  • Aug. 4, 2010: Walker finds Prop. 8 unconstitutionally violates the civil rights of gays and lesbians.
  • Aug. 5, 2010: Appeal of Walker’s ruling filed before the 9th U.S. Circuit Court of Appeals; new same-sex marriages on hold pending a decision.
  • April 6, 2011: Walker, now retired, tells reporters his sexual orientation was no reason to recuse himself, discusses 10-year relationship with a male physician.
  • April 25, 2011: Prop. 8 sponsors file motion to nullify Walker’s ruling, citing his new public statements.
  • Tuesday: U.S. District Court Judge James Ware denies the motion.
  • September: California Supreme Court expected to hold hearing on whether Prop. 8 sponsors can appeal in state court.

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Ari Burack

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