Prop. 8: Quick ruling promised
on Jun 13, 2011 at 11:00 pm
A federal judge in San Francisco, closing a lengthy hearing on Monday on a plea that he wipe out another judge’s decision striking down California’s ban on same-sex marriage, vowed to issue a prompt decision, perhaps within 24 hours. Chief District Judge James Ware seemed troubled over what standard he should use, and what precedent he might be setting, as he prepared to rule on whether to nullify that decision against Proposition 8. He has been asked to do so on the premise that District Judge Vaughn R. Walker, the trial judge, should have disqualified himself altogether from trying the case.
At one point midway through the hearing, Judge Ware commented that this wais “the first case where a same-sex relationship is the subject of the question with respect to disqualifying a judge. So it is important that we treat it seriously and get it right.”  Judge Walker is gay, and has a long-time partner — a relationship that the sponsors of Proposition 8 have argued should have been disclosed; since he did not do so while the trial went forward, the argument goes, his ruling should be vacated entirely.
Judge Ware reacted negatively when the lawyer for the Proposition 8 backers, Washington attorney Charles J. Cooper, indicated that he had no specific evidence that Judge Walker actually intended to marry his partner — a marriage that could occur only if Proposition 8 were struck down. And, Cooper argued, the judge should have disclosed whether he did or did not have such an intention.
Cooper, while arguing that Walker was not being challenged in the case because he is gay, based his argument for disqualification on the assertion that gays and lesbians involved in long-term, committed relationships had brought the case precisely so they could get married, and Judge Walker’s relationship caused him to “stand in the same shoes” of those seeking the right to marry.
Ware reacted by suggesting that, without any evidence of what Judge Walker’s intentions were, Cooper essentially was saying that being in a long-term relationship necessarily meant that marriage was the inevitable aim of those ties.
Althugh the judge said that nothing should be concluded from the questions and comments he was making, he gave several indications of how his thinking was leaning. First of all, he said, he would actually rule on the merits of whether Judge Walker should have disqualified himself, rather than on whether the Proposition 8 backers had waited too long — after the trial was over and an appeal proceeding — to make their challenge. “I’m just not willing” to take that procedural approach, he said.
Second, the judge said, he was going to make his decision on whether Judge Walker should have disqualified himself even before the trial began, not on how the judge may have ruled on preliminary points as the case went along. The Proposition 8 backers have argued that the judge had displayed a bias against Proposition 8 by a series of those mid-trial rulings.  Judge Ware said the appeal that is ongoing was the place to raise issues about how the trial was conducted as it unfolded.
Third, the judge indicated that he would use a standard of what a “reasonable person” would have concluded about whether Judge Walker should have taken himself off the case, and that such a hypothetical person would be assumed to draw conclusions not based on bias or prejudice about the judge’s sexual orientation.
Fourth, the judge said that an argument by Theodore J. Boutrous, the Los Angeles lawyer for the two gay couples who won their challenge to the marriage ban, “bears close examination.”  Boutrous had suggested that, even if Ware did accept that Judge Walker had an intention to marry his gay partner, that would still not lead a “reasonable person” to think that he should disqualify.  For a court to go into that kind of inquiry into “a judge’s thought process and intentions and beliefs,” Bourtrous said, “it gets too difficult; it gets too intrusive.”
Finally, the judge indicated that he was quite skeptical of the argument by Cooper  that the federal law that spells out when a federal judge should recuse from any role in a case included, as a separate requirement, that the judge had a duty to disclose something about himself that might lead lawyers to move for a recusal. The judge said he could not find that in the statute.
During the hearing, the judge commented that, normally, a challenge to a judge’s participation or not in a case was up to that judge to decide, and Ware indicated he was somewhat uncomfortable taking Judge Walker’s place to make that call.  He pointed out that Judge Walker was not in the case to defend himself.
However, Ware noted that he had before him a motion to vacate Walker’s decision, based on the claim that he should not have tried the case at all, so it was now up to Ware to rule directly on the question of disqualification.
Before the judge and the lawyers in the case reached the issue of the plea to vacate the Walker decision, they spent some time on another plea by the Proposition 8 backers — that is, that Ware should permanently seal a videotape recording made of the full trial, so that it never is broadcast or displayed in public.  The judge said that he was going to deny promptly a plea by Cooper to require those who possess copies of the tapes to turn them over to the court.
But, the judge said, he would rule later, after another hearing, on a plea by the opponents of Proposition 8 that the judge should clear the videotape for public broadcast and viewing.
