Proponents seek to erase Prop 8 strikedown because judge did not disclose same-sex relationship
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The proponents of California's Proposition 8 on April 25 asked the federal District Court in San Francisco to nullify last year's decision that struck down Prop 8 because now-retired Judge Vaughn Walker did not disclose at the time that he was in a same-sex relationship.
"Given that Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced), it is clear that his 'impartiality might reasonably [have been] questioned' from the outset," the Prop 8 proponents wrote in their motion to vacate judgment.
Walker had an obligation either to recuse himself from the case, the filing says, or to disclose the relationship so that the parties in the case could have decided whether to request his recusal. Walker's having done neither, the filing says, violated a requirement that judges "avoid even the appearance of partiality."
The motion also says that Walker should have revealed whether he had any interest in marrying his partner. If he did, then "Walker plainly had an 'interest that could be substantially affected by the outcome of the proceeding,'" the filing says.
"Such a clear and direct stake in the outcome" would have made recusal "mandatory," the document says.
Since Walker did not disavow any interest in getting married, the motion says, "it must be presumed that he has an interest in marrying his partner and therefore was in fact the 'judge in his own case.'"
"In light of Chief Judge Walker's undeniable violation of [U.S. Code] Section 455(a) and his presumed violation of Section 455(b)(4), the only responsible and just course is to vacate the judgment entered in this case," the motion says.
Gay rights lawyers derided the motion.
"This is a desperate and ill-advised move that underscores their inability to defend Prop 8 on the merits," said Shannon Minter, legal director at the National Center for Lesbian Rights. "This is not likely to win them any points with the courts, who understandably do not appreciate having the integrity of judges called into question based on such outrageous grounds."
Lambda Legal compared the move to a last-ditch play at the end of a football game.
