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Effort to preserve Prop. 8

2011-JUN: Attempt to preserve Prop 8
by vacating Judge Walker's ruling

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Two loving, committed same-sex couples were prevented from marrying in California because of Proposition 8, a citizen initiative that banned same-sex marriages (SSMs) as of 2008-NOV. They launched a lawsuit in federal court, arguing that Prop. 8 violated the U.S. Constitution. District Court Judge Vaughn Walker ruled that Prop. 8 did violate the Constitution. A group of religious conservatives in the state launched an appeal in 2010. In 2011, they also attempted to have Judge Walker's ruling vacated. They argued that Judge Walker should have recused himself from the case because he is gay, is in a long-term relationship with another man, and might possibly want to get married some day. They concluded that his personal situation could give him a personal interest in the case, and might bias his decision.

The latter case was filed on 2011-APR-25, and heard on JUN-13. It was rejected by United States District Chief Judge James Ware in his ruling of JUN-14.

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Review of the ruling by Judge Walker:

One lesbian couple, Kristin Perry & Sandra Stier, and one gay couple, Paul Katami and Jeffrey Zarrillo had been denied marriage licenses after the passage of Prop. 8 on election day 2008-NOV, because of their gender. If Kristin wanted to marry Paul, there would have been no problem obtaining a marriage license and registering their marriage. Similarly, there would have been no problem if Sandra wanted to marry Jeffrey. But Prop. 8 banned the four from marrying the persons that they love and to whom they are committed, solely because it would have resulted in two same-sex marriages.

They sued Arnold Schwarzenegger (R) in his official capacity as Governor of California, as well as five other state officials in their official capacities. Five individuals had promoted Prop 8 were defendant-intervenors. The administration took the almost unprecedented action of not attempting to defend Prop. 8 in court. Edmund Brown Jr, the Attorney General of California, conceded that Prop. 8 violates the U.S. Constitution. Subsequently, the City and County of San Francisco (CCSF) was added as a plaintiff-intervenor.

The plaintiffs lawsuit was based on their civil rights claim that Prop. 8 is in violation of the Fourteenth Amendment of the U.S. Constitution. This grants Americans the rights of personal privacy and liberty, and was the basis of the 1973 U.S. Supreme Court decision Roe v. Wade that legalized early abortions. This was the first time that marriage equality had been raised in a California court. The trial covered the interval from 2010-JAN-11 to JAN-27.

On 2010-AUG-04, Federal District Judge Vaughn Walker ruled that Proposition 8, which was very narrowly passed by the voters on election day in 2008, is unconstitutional. The 136 page text of his ruling is online, as are copies of evidence submitted at trial. 1,2

He determined that:

  • The right to marry is a fundamental right for loving, committed couples, whether they be of opposite-sex or of the same-sex.

  • Under the U.S. Constitution, marriage cannot be denied anyone without a compelling reason to do so.

  • There is no compelling reason why a state government should deny marriage to couples simply because they are of the same gender.

He concluded that:

  • "Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples."

At the time of the ruling, some religious and social conservatives suggested that he should not have accepted the case because he is gay and only heterosexual Judges were competent to rule on this matter.

Supporters of Prop. 8 appealed Judge Walker's ruling to the 9th Circuit Court of Appeals. In a separate initiative, they also attempted to have Judge Walker's ruling vacated -- made legally void.

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Attempt to void Judge Walker's ruling:

Shortly after he retired from the bench, during an interview, Judge Walker reported that he is gay and in a "10 year relationship with a physician."

The organization behind -- which is composed of Prop. 8 supporters -- asked the District Court to vacate Judge Walker's ruling. They based their case on the fact that Judge Walker is gay and in a same-sex relationship. Thus, he should have recused himself from the case. Their rationale was that he might benefit from his own ruling because he might possibly wish to get married in the future.

The Defendent-Intervenors filed their motion on 2011-APR-25, which was only 19 days after the interview was published. They claimed that their action was timely because they filed it shortly after they learned of Judge Walker's relationship. The plaintiffs suggested that the motion was untimely because the Defendent-Intervenors knew from newspaper articles in 2010 that that Judge Walker was probably gay. The court ruled that the motion was timely, because it is based on Judge Walker's same-sex relationship, not his sexual orientation. The newspaper articles in 2010 did not mention his long-term relationship with another male.

Under law, a federal judge is required to recuse if he has "a substantial non-pecuniary interest in the case, or if there is some fact that brings the impartiality of the judge reasonably into question." 5

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Thoughts about the case before the hearing:

An article by station KQED appeared on the National Public Radio web site on the day of the hearing. Some comments were:

  • Andrew Pugno, one of the attorneys defending Proposition 8 said: "Judge Walker's 10-year same-sex relationship creates this unavoidable impression that he was just not the impartial judge that the law requires. ... The motion is all about the fundamental principle that a judge really can't sit to hear their own case when they have an interest in the outcome."

  • Kate Kendell, executive director of the National Center for Lesbian Rights, said: "There is absolutely not one scintilla of evidence that that fact of who he is biased him against the proponents. ... We cannot be about assuming that simply because a judge is of a certain sexual orientation, race or gender, he or she is incapable of actually doing the job of a judge."

  • Attorney Ray Marshall, a former chairperson of the California Bar Association, compared this case with Brown v. the Board of Education -- the case that desegregated U.S. public schools in the 1950s. It was a unanimous decision by an all-white Supreme Court. Marshall said: "The presumption was that of course nine judges — all white men — will read the Constitution and make the decision fairly."

  • University of California Hastings Law School Professor Rory Little said: "The immediate reaction is, 'Oh, he's gay, of course he ruled for the gay people.' That's kind of like saying, 'Well, he's black and of course he ruled for the black people.' It really is a sort of insulting accusation. ... It begins to look like an act of desperation. Rather than fighting the case on the merits, they're looking for procedural reasons to challenge it.

  • Deborah Rhode, director of the Center on the Legal Profession at Stanford University's Law School, said: "It would have served everyone's interest if Judge Walker had made disclosures at an earlier point. ... I think he might have anticipated that this would muddy the water." 11

With the exception of Andrew Pugno, all of the above comments seem to have missed the mark. The controversy was not directly about Judge Walker's sexual orientation. It was about his long-term committed relationship with another man, that might eventually result in the two wanting to get married at some time in the future.

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Judge Ware's ruling:

On 2011-JUN-14, Judge Ware dismissed the case and upheld Judge Walker's ruling. Judge Ware wrote:

"... that neither recusal nor disqualification was required based on the asserted grounds.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). Further, under Section 455(a), 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." 6

After reviewing several similar past cases, Judge Ware wrote:

"... in a case involving laws restricting the right of various members of the public to marry, any personal interest that a judge gleans as a member of the public who might marry is too attenuated to warrant recusal. 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 Section 455(b)(4) standard that required recusal of minority judges in most, if not all, civil rights cases. Congress could not have intended such an unworkable recusal statute." 7

He also wrote:

"In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right." 10

"[T]he presumption that 'all people in same-sex relationships think alike' is an unreasonable presumption, and one which has no place in legal reasoning." 8

"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. ..." 9

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Reactions to Judge Ware's ruling:

  • Commentator Ed Whelan criticized Judge Ware's anticipated ruling one day after the hearing. Whelan wrote a personal attack on Judge Ware in the conservative publication: National Review Online:

    "It would take a judge of clarity and courage to do the right thing, and it would be especially uncomfortable for a longtime colleague of Walker’s to vacate the signature ruling of Walker’s career. No one familiar with Ware would have expected him to grant the motion. As a prominent lawyer in the Northern District of California put it (in an e-mail to me):

    ' [Ware] is infamous for having contrived a story about his brother being attacked by a racist mob which made him, a black man, especially sensitive to racial prejudice. Turns out the incident never happened, he didn’t even have a brother. The fabrication kept Ware from advancing to the 9th Circuit but was not considered serious enough to compel him to step down from the District Court. The excuse for his staying was that he hadn’t actually told the story under oath, just to the FBI and congressional staffers during their conduct of the background investigation. Ha!'

    ' Since then, he “enjoys” a well-earned reputation for laziness. He has transformed the back wall of his courtroom, not his chambers mind you, into a shrine to the civil rights movement with posters of Malcolm X, candidate Barack Obama and other memorabilia prominently displayed…. In my opinion, while he’s not distinguished himself as a jurist of prominence, he, too, would use the occasion, were it to present itself to him, to burnish his credentials with the left and atone for his past indiscretion(s)'." 4

  • Commentator Andrew Cohen of the liberal magazine The Atlantic referred to the case before Judge Ware as an "... odious recusal motion filed in the Proposition 8 case." He noted that Judge Ware said after the hearing that he hoped to issue his ruling within 24 hours. Cohen commented:

    "Twenty-four hours! Like the blink of an eye in the justice system. And further proof of how pitch-poor the recusal motion is."

    Referring to the team that launched this motion before Judge Ware, Cohen comments:

    "These were the guys that were supposed to stare down Ted Olson and David Boies, the blue-label lawyers for the anti-Prop 8 forces. And these are the guys today who are saying they got an unfair trial because the judge is gay. I am sure that Judge Ware read Judge Walker's ruling last August. And I am sure he has read it again since. This record doesn't show judicial bias. It shows arguments and advocates bereft of evidence or logic. There's no place for that in federal court, no matter what the case or cause."
  • Michael Airhart posted a comment on the Truth Wins Out -- a gay positive web site: A U.S. District Court judge dealt a setback today to Christian Right efforts to weed gay judges out of the federal judiciary system.

"Chief Judge James Ware rejected the argument by Christian Right political organizations that no gay judge who is in a relationship may rule on a case involving legally recognized relationships such as marriage. Narrowly speaking, anti gay groups had sought to prevent any gay person other than a celibate or “ex-gay” from serving as a judge in family-law matters. More broadly, the Christian Right groups sought to rationalize a future ban on female, black, atheist, and Jewish judges serving in cases involving minority constitutional rights."

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References used:

 The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "GLAD’s Mary Bonauto Comments on Perry v. Schwarzenegger Decision," GLAD, 2010-AUG-04, at:
  2. Marty Klein, "Prop 8, Minority Rights, & American Democracy," Sexual Intelligence, 2010-AUG-05, at:
  3. Candace Chellew-Hodge, "Gay judge's Prop. 8 decision holds," Religion Dispatches, 2011-JUN-14, at:
  4. Ed Whelan, "Forthcoming Denial of Motion to Vacate Anti-Prop 8 Judgment," National Review Online, 2011-JUN-14, at:
  5. "Order denying defendant - Interveners' motion to vacate judgment," U.S. District Court for the Northern District of California, Page 1, 2011-JUN-14, at:
  6. Ibid, Page 2.
  7. Ibid, Page 7.
  8. Ibid, Page 18.
  9. Ibid, Page 19.
  10. Ibid, Page 8.
  11. Scott Shafer, "When A Gay Judge Rules On Gay Rights," National Public Radio, 2011-JUN-13, at:
  12. Andrew Cohen, "Updated: So What Was Judge Vaughn Walker's Trial Like, Anyway?," The Atlantic, 2011-JUN-14, at:
  13. Michael Airhart, "Judge Rejects Christian Right Witchhunt against Prop 8 Judge," Truth Wins Out, 2011-JUN-14, at:

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Copyright 2011 by Ontario Consultants on Religious Tolerance
Original posting: 2011-JUN-15
Latest update: 2011-JUL-31
Author: B.A. Robinson

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