|Move to 'vacate' Prop 8 strikedown because judge has gay partner fails Judge also rejects request that trial tapes be returned to court|
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."