Move to 'vacate' Prop 8 strikedown fails

A legal attempt to "vacate" the federal court ruling that struck down California's Proposition 8, which amended the state constitution in 2008 to re-ban same-sex marriage, failed June 14.

U.S. District Judge James Ware rejected arguments by Prop 8's supporters that now-retired trial Judge Vaughn Walker, who is gay, should have recused himself from the case, or have been disqualified, because he is in a relationship.

Ware wrote: "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. ... Further ... 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. Accordingly, the Motion to Vacate Judgment on the sole ground of Judge Walker's same-sex relationship is DENIED."

Prop 8's supporters contended that Walker had a personal stake in the case because if Prop 8 dies, Walker could then marry his partner. But Ware didn't buy that.

"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 ... standard that required recusal of minority judges in most, if not all, civil rights cases," he wrote. "Congress could not have intended such an unworkable recusal statute."

Neither should Walker have been disqualified from hearing the case, Ware said.

"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," Ware said, in reference to Walker's same-sex relationship.

Beyond that, even if Walker wants to get married (which is not something he's ever talked about publicly), that could be an urge that waxes and wanes over time, Ware said.

"Under such a standard, disqualification would be based on assumptions about the amorphous personal feelings of judges in regards to such intimate and shifting matters as future desire to undergo an abortion, to send a child to a particular university or to engage in family planning. So too here, a test inquiring into the presiding judge's desire to enter into the institution of marriage with a member of the same sex, now or in the future, would require reliance upon similarly elusive factors."

"(R)ecusal could turn on whether a judge 'fervently' intended to marry a same-sex partner versus merely 'lukewarmly' intended to marry, determination that could only be reached through undependable and invasive self-reports," Ware said.

"The Court declines to adopt the principle that absence of disclosure (by Walker of any marriage desire) should warrant the mandatory inference that the presiding judge 'fervently' intends to marry and, thus, holds an interest in this case that is substantially affected by the outcome."

In wrapping up his 21-page decision, Ware opined: "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."

Gay groups cheered Ware's ruling.

"We applaud the court for rejecting the pathetic attempts by Prop 8 backers to viciously malign Judge Walker," said Equality California Interim Executive Director Jim Carroll. "Because proponents of the marriage ban have repeatedly failed to present even a shred of evidence to support the insidious discrimination that Prop 8 fosters, they tried and failed to hide behind groundless, shameful arguments to discredit Judge Walker -- arguments that fail to hold up under even the slightest scrutiny."

Lambda Legal staff attorney Peter Renn said: "The court decisively rejected an outrageous attack on the integrity of Judge Walker, not to mention judges in general. The motion was a sideshow designed to deflect attention from the fact that the proponents had every chance to prove that Prop 8 was constitutional, but could not do so. Prop 8 was declared unconstitutional because it is unconstitutional -- not because the judge is gay."

National Center for Lesbian Rights Executive Director Kate Kendell opined, "This ruling will protect all judges from similarly desperate and unwarranted attacks from parties who lose their initial case and unfairly seek a second bite at the apple."

The lead lawyer defending Prop 8, Charles Cooper, said he will appeal Ware's decision.

"The ProtectMarriage.com legal team obviously disagrees with today's ruling," Cooper said. "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."

Meanwhile, in a separate ruling June 14, Ware rejected a request from Prop 8 supporters that all parties to the case return to the court their copies of the video recording of the Prop 8 trial.

That request stemmed from Walker's having shown snippets of the recording in public speeches about cameras in the courtroom.

After Prop 8 supporters objected to the showings, Walker gave his copy of the seemingly legally "sealed" recording back to the court. In his ruling, Ware declined to address whether Walker had done anything wrong in using the tapes, and he said he plans to give the recordings back to Walker if no objections are filed.

The gay side's lawyers and several media outlets want the whole trial recording released to the public. Ware said he will hold a hearing on that request Aug. 29.

Walker's ruling that struck down Prop 8 as unconstitutional is on appeal to the U.S. 9th Circuit Court of Appeals.

The appeal has been delayed because the 9th Circuit is unsure whether the people who filed the appeal -- the folks who had put Prop 8 on the ballot in 2008 -- have a legal right to step into the shoes of the state government and defend a piece of the state constitution that has been found in violation of the U.S. Constitution.

All of the actual defendants in the case -- the governor, the attorney general, the county clerks of Alameda and Los Angeles counties, and the state Health Department -- have refused to defend Prop 8.

Because of its uncertainty, the 9th Circuit has asked the California Supreme Court for its thoughts on whether the Prop 8 proponents have legal standing to appeal. The California Supreme Court has agreed to answer that question, but has not yet done so.

Should the Prop 8 proponents be found not to have any legal standing to have appealed Walker's ruling, the ruling will take effect and same-sex couples will again be able to marry in California.

The standing issue should be resolved late this year or early next year.