Anti-Proposition 8 ruling stands (UPDATED)
on Jun 14, 2011 at 3:25 pm
UPDATED 7:50 p.m. Judge Ware, in an order separate from the ruling discussed below, set a hearing for Aug. 29 on a plea to release for public broadcasting and viewing a videotape recording of the Proposition 8 trial.  The video is now under seal, although lawyers in the case have copies. The judge’s order also denied a request by the Proposition 8 backers to order all copies returned to the court to prevent any disclosure.
A federal judge in California ruled Tuesday that the federal judge who struck down California’s ban on same-sex marriage had no legal duty to take himself off of that case, and thus there is no need even to rule on whether that decision should be summarily overturned. Chief U.S. District Judge James Ware of San Francisco, in a 19-page opinion, rejected all of the arguments made by backers of so-called Proposition 8 that the trial judge, Vaughn R. Walker, violated federal ethics law in deciding the case because he had failed to disclose that he is gay and is involved in a long-term, committed relationship.
Ruling 24 hours after holding a hearing on the issue, Judge Ware concluded that Judge Walker would have created “a pernicious precedent” if, out of caution, he had publicly revealed intimate details about his personal life. “It is clear,” Ware wrote, “that fostering the practice of commencing a judicial proceeding with an extensive exploration into the history and psyche of the presiding judge would produce the spurious appearance that irrelevant personal information could impact the judge’s decision-making, which would be harmful to the integrity of the courts.”
Proposition 8’s sponsors had argued that they were not challenging Judge Walker solely because he is gay, but rather because he did not tell those involved in the case that fact and the fact of his long-term gay relationship.  Judge Ware concluded that their request to wipe out his decision in the case was based “on the sole ground of Judge Walker’s same-sex relationship.” The judge did concede, though, that the challenge was not based on the mere fact that Walker is a gay person — that is, his “sexual orientation.”
With Tuesday’s ruling, the constitutional fate now returns as an issue before the Ninth Circuit Court and the California Supreme Court. At the moment, the state Supreme Court is expected to be the first to make a decision bearing on the constitutional question. It has before it a request from the Ninth Circuit to clarify California law on whether the Proposition 8 backers have a legal right to defend that ballot measure in federal court, standing in for state officials who have refused to defend its validity. Once the state court has ruled, the dispute then returns to the Ninth Circuit — first, for a ruling on whether the appeal of Judge Walker’s decision can go forward and, if it rules that the case may proceed, to decide whether Judge Walker was right in striking down the hotly controversial ban on marriage of gays and lesbians.
Proposition 8’s backers, after losing the case before Judge Walker and having their right to be in court questioned by the Ninth Circuit, launched their challenge to the trial judge and to his ruling. That challenge wound up before Judge Ware, because he had taken over the case for further District Court proceedings after Judge Walker retired and left the bench earlier this year. (Judge Ware also has pending in his court a plea by the two gay couples who challenged Proposition 8 to release for public broadcast the full videotape recording of the trial in Judge Walker’s court. That plea, backed by the news media, was not at issue in Tuesday’s decision; Judge Ware will consider it later.)
The core of the argument against Judge Walker was that, under federal ethics law, he was disqualified from presiding over the case because of his public revelation, after retiring, that he is in a long-term gay relationship with a California doctor.  That relationship, the Proposition 8 backers contended, gave him an interest in the case — potentially, his own same-sex marriage — that could be affected by the way he decided the case on the merits.
Rejecting that contention, Judge 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” under the federal ethics law (Section 455). “It is not reasonable,” the opinion added, “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.”
“In a case involving laws restricting the right of various members of the public to marry,” the judge concluded, “any personal interest that a judge gleans as a member of the public who might marry is too attenuated to warrant recusal.” He added that, if a judge had to step out of a case because of membership in a class against whom an unconstitutional law was directed, that would lead to a legal standard “that required recusal of minority judges in most, if not all, civil rights cases. Congress could not have intended such an unworkable judicial recusal statute….We all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right.”
Judge Ware went on to rule that Judge Walker also was not required to disqualify himself, under a separate provision from that involving recusals.
Under federal court rules, a District Court’s ruling may be nullified because, among other reasons, the judge who had presided in the case was disqualified. Judge Ware ruled that, even though the underlying dispute over Proposition 8’s validity is now pending in an appeals court, he had the authority to decide whether Judge Walker was disqualified or should have recused himself (that is, should have taken himself off of the case).
