Prop 8 judge’s most personal intentions coming under scrutiny

Vaughn Walker

Second of two parts (Part One)

Former U.S. District Court Chief Judge Vaughn Walker recently told a small group of reporters that it would be a “very slippery slope” to say that a judge’s “sexuality” should prevent him or her from handling a case such as the trial against Proposition 8. Many legal activists—gay and straight—agree. In fact, the lead attorney for the Yes on 8 coalition that is defending California’s ban on same-sex couples marrying agrees.

“We are not suggesting that a gay or lesbian judge could not sit on this case,” said Charles Cooper states, in his motion to vacate Judge Walker’s ruling against Proposition 8. But in their April 25 motion seeking to vacate Walker’s ruling, Cooper and his team argue that, “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 U.S. Code governing “Judiciary and Judicial Procedure” does not stipulate that a judge should recuse himself because of any specific personal characteristic that he or she has. It draws a case-specific line: The Code states that a judge should recuse himself “in any proceeding in which his impartiality might reasonably be questioned” or in any case where the judge “knows that he … has a financial interest in the subject matter in controversy … or any other interest that could be substantially affected by the outcome of the proceeding….”

It is the latter directive Yes on 8 focuses on because, in an April 6 interview with reporters, Walker acknowledged having been in a relationship with a man for the past 10 years.

“[I]f at any time while this case was pending before him, Chief Judge Walker and his partner determined that they desired, or might desire, to marry,” wrote Cooper in his motion, “Chief Judge Walker plainly had an ‘interest that could be substantially affected by the outcome of the proceeding’.”

“Indeed, such a personal interest in his own marriage would place Chief Judge Walker in precisely the same shoes as the two couples who brought the case,” said Cooper. “Such a clear and direct stake in the outcome would create a nonwaivable conflict, and recusal would have been mandatory.”

Certainly, being able to marry provides couples benefits, including financial benefits. That has been a key argument from plaintiffs in this case and from legal groups fighting the federal Defense of Marriage Act (DOMA) in other federal cases.

But it is hard to imagine how Judge James Ware, whose job it will be to rule on the motion to vacate, can determine whether Walker and his partner “desired” or “might” have desired to marry during the course of the trial without asking Walker –either in court or through an affidavit. And that will lend extra drama to the June 13 hearing on the motion to vacate because Judge Ware has ordered Judge Walker to appear in court that day when Judge Ware hears arguments on a separate motion, concerning videotapes of the trial.

Cooper argues, in his motion, that Walker should have “at a minimum” provided “full disclosure on the record” about his relationship “so that the parties could consider and decide before the case proceeded further, whether to request his recusal.” (Apparently, Cooper and his team were either unaware of what the San Francisco Chronicle called an “open secret” concerning Walker’s being gay—or maybe they just didn’t put stock in rumors.)

But the Code also states that, “disqualification is not required if the [judge] divests himself or herself of the interest that provides the grounds for the disqualification.”

In other words, Walker could presumably divest himself of any potential gain from his ruling if he simply declared that he has never intended to marry his same-sex partner and that he never intends to do so.

Cooper appears to address this aspect of the Code when he notes that Walker “had a duty to disclose not only the facts concerning his relationship, but also his marriage intentions….”

“Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case,” wrote Cooper. “…  Because he did not do so when the case was assigned to him, and has not done so since, it must be presumed that he has an interest in marrying his partner and therefore was in fact the ‘judge in his own case’.”

But that’s Cooper’s presumption—that all people in long-term relationships want to get married. It is well known in the LGBT community that not all gay and lesbian couples want to get marriage. Census data shows the same to be true for many straight couples. Data released in 2008 showed the number of unmarried heterosexual couples living together numbered about six million—up from less than one million in 1977. And, in a twist of irony, it was a 2006 study by a group that opposes same-sex marriage (the Institute for Marriage and Public Policy) that claimed only about 15 percent of same-sex couples who live in places where they can obtain a marriage license choose to do so.

And then there’s the reality that, if Walker and his partner had wanted to get married, they had a six-month window of opportunity to do so in California—between May and November 2008, before voters passed Proposition 8.

Not surprisingly, then, Cooper attempts to persuade Judge Ware of Judge Walker’s impartiality by characterizing certain of his acts during the trial as having been “marked by a number of irregular and unprecedented rulings, both procedural and substantive, that give gravely disquieting force to the ‘appearance of partiality’ created by the belated disclosure of Chief Judge Walker’s long-term, committed relationship.” Among those rulings, said Cooper, was Walker’s request that Yes on 8 disclose confidential, internal communications of the pro-Proposition 8 groups; and his ruling that the trial proceedings be broadcast and web streamed. But neither of those rulings could have a demonstrated impact on the case because both of those rulings were overturned by higher courts.

One thing that seems painfully clear from this latest round of side issues to the Proposition 8 case is that, whatever Judge Ware decides concerning the motion to vacate, that ruling, too, will almost certainly be decided by a higher court.

6 Responses to Prop 8 judge’s most personal intentions coming under scrutiny

  1. Yvonne says:

    Lol! What a joke. “I’m not calling you a LIAR, I’m just saying I think you’re being dishonest.” “We are not suggesting that a gay or lesbian judge could not sit on this case,” Ummmm… yes, that is EXACTLY what you are suggesting. Is this some weird extension of FOX News where the more often you say false things the more likely they are to magically become true? The folly of this whole thing can easily be revealed by substituting one little term in this sentence: “Given that Chief Judge Walker was in a committed, long-term, ‘opposite sex’ (substituted for 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.”

    To Cooper: Look, you didn’t present your case very well in court and it appears you are quite aware of this. The vigor in which your side has pursued keeping the public from viewing the actual trial footage more than supports this belief. Attacking the Judge because he didn’t rule in your favor is egregious. I hope you get a very deserved public spanking from the courts for your behavior.

  2. gunshowsigns says:

    Since when has any of the No on P8 folks followed the law. This has been a setup since the Terminator went to the log cabin republican convention in San Diego and the next day or week the republican CA Supremos bypassed the state constitution and REDEFINED the word “MARRIAGE” from the definition at the time of the writing of the CA Constitution in the 1850’s. DID THE WRITER’S OF THE CA CONSTITUTION THINK THE WORD MARRIAGE MEANT MAN AND MAN. No it was taken from the biblical marriage man and wife or even more Christ and the church not Satan and the church. Whether you like it or not the KJV Bible was the most read and printed book (ie family bibles were legal documents) and the basis for the English language and it’s laws.

    Here is the definition of marriage in the 1850’s
    Genesis 2:24 KJV
    Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh.


  3. John says:

    Pretty sick. Solid proof of how desperate they are. Another motion frivolous motion worthy of sanction.

    But I am STILL waiting here. Where are the researchers? Why has no one connected this judge to the one (very famous) case that proves his sexuality doesn’t matter and he doesn’t give a hoot when he exercises his duty as a judge. Come on folks! This is easy. I am disappointed. Sooo easy I’m not even going to give you a hint. Somebody needs to do some homework for this is almost embarrassing. Get an LGBT lawyer over 50 on this case and s/he’ll enlighten you.

  4. Tim from Fallbrook, CA says:

    Let me try to understand this. The proponents of Prop 8 maintain that same sex marriage is somehow harmful to “traditional marriage” (although they couldn’t come up with a shred of evidence in court to support that contention) and therefore, according to them, the voters had a right to amend the State’s constitution to outlaw the issuance of licenses to same sex couples. Given that contention, shouldn’t the anti same sex marriage crowd also try to enjoin any judge who is in a “traditional” marriage from ruling on this case? Wouldn’t a jurist who was in a so-called “traditional” marriage have a direct interest in the outcome since he/she would supposedly be damaged by same sex marriage? Why is it that just gay jurists who might seek a same sex marriage be expected to recuse themselves but heterosexual jurists who already enjoy this right have no such obligation? I must agree with Yvonne’s comments above and conclude that the hypocrisy of the Yes on 8 legal team is quite telling. NO ON 8!!

  5. Joe Schmoe says:

    So if a discrimination case involving African-Americans came to the Supreme Court, Clarence Thomas would have to recuse himself? OK, he wouldn’t have to recuse himself unless he actually suffered discrimination at some point in his life! Well, let’s face it, he surely did, no matter his current position!

  6. Little man says:

    The arguments are well laid out by Cooper, and we don’t need anyone else’s opinion (specially self-made attorneys) regarding this issue – it is for the court to decide.

    Already, higher courts have had to stop ex-Judge Walker’s rebellious actions, and now he has had to return the tapes no matter what. And now he’s trying not to appear in court.

Leave a Reply