The proponents of California's same-sex-marriage ban are pushing on with their latest attempt to undo the federal District Court ruling that found Proposition 8 violates the U.S. Constitution.
On June 28, the people who put Prop 8 on the ballot in 2008 appealed a June 14 District Court decision against "vacating" the judgment that struck down the state constitutional amendment.
The proponents had unsuccessfully argued that the ruling should be thrown out because the now-retired judge who decided the case, Vaughn Walker, is in a same-sex relationship.
San Francisco U.S. District Judge James Ware swatted away that move June 14, saying: "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. ... 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."
The attack on Walker has been derided by gay groups. Equality California called it "pathetic," "groundless" and "shameful." Lambda Legal called it an "outrageous" "sideshow." And the National Center for Lesbian Rights called it "desperate."
"It is disappointing that the proponents of Proposition 8 continue their unfounded attack on former Chief Judge Walker, and this (appeal) is just the latest sign of their desperation," said Theodore J. Boutrous Jr., counsel for the American Foundation for Equal Rights, which filed the lawsuit that led to Prop 8's being struck down.
"Chief Judge Ware correctly recognized that a gay or lesbian judge is entitled to the same presumption of fairness and impartiality as all other federal judges, not the presumption of bias urged by proponents," Boutrous said. "We are confident that the denial of proponents' unfortunate motion will be affirmed."
AFER's board president, Chad Griffin, said the proponents' latest action rises to the level of anti-gay animus.
"Desperately clinging to whatever life raft they can, the anti-marriage forces behind Prop 8 have tried repeatedly to get our victory thrown out," Griffin said. "With this appeal, they have once again revealed the same animus they showed during their anti-gay political campaign to pass Prop 8. They will stop at nothing to deny gay and lesbian Americans the freedom to marry."
Walker's original ruling that struck down Prop 8 is also on appeal to the 9th U.S. Circuit Court of Appeals.
The appeal has been delayed because the 9th Circuit is unsure whether the people who filed the appeal -- the folks who put Prop 8 on the ballot in 2008 -- have a legal right to step into the shoes of the state government and defend a piece of the state constitution that has been found in violation of the U.S. Constitution.
All of the actual defendants in the case -- the governor, the attorney general, the county clerks of Alameda and Los Angeles counties, and the state Health Department -- have refused to defend Prop 8.
Because of its uncertainty, the 9th Circuit has asked the California Supreme Court for its thoughts on whether the Prop 8 proponents have legal standing to appeal. The California Supreme Court has agreed to answer the question, but has not yet done so.
Should the Prop 8 proponents be found not to have any legal standing to have appealed Walker's ruling, the ruling will take effect and same-sex couples will again be able to marry in California. The standing issue should be resolved late this year or early next year.