U.S. District Court Judge James Ware ruled today that the Aug. 4, 2010, decision by now-retired Judge Vaughn Walker striking down Proposition 8 as unconstitutional could not be vacated -- as the proponents of Proposition 8 argued on Monday, June 13 -- because Walker is gay and has a partner.
In introducing the denial, Ware writes:
After considering the Oppositions to the Motion and the governing law, as discussed below, the Court finds that neither recusal nor disqualification was required based on the asserted grounds. 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 Section 455(b)(4). Further, under Section 455(a), 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.
Specifically, Ware looks at recusal case law and concludes:
In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristic and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge under Section 455(b)(4).
In applying this conclusion to the present case, the Court finds that Judge Walker was not required to recuse himself under Section 455(b)(4) on the ground that he was engaged in a long-term same-sex relationship and, thus, could reap speculative benefit from an injunction halting enforcement of Proposition 8 in California. ... 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 Section 455(b)(4) standard that required recusal of minority judges in most, if not all, civil rights cases. Congress could not have intended such an unworkable recusal statute.
As to the underlying principles at play, Ware also notes, "[I]t is inconsistent with the general principles of constitutional adjudication to presume that a member of a minority group reaps a greater benefit from application of the substantive protections of our Constitution than would a member of the majority."
In denying the portion of the proponent's motion claiming that a "reasonable observer" would question Judge Walker's impartiality, Ware writes:
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. On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits.
Read the decision: 797.pdf
[UPDATE: On a conference call with reporters immediately following the decision, plaintiffs' attorney Theodroe Boutros said, "They could try to appeal" -- but he noted both standing and procedural complications to doing so.
Later, Charles Cooper, the proponents' lead lawyer, announced that they planned just that, saying in a statement, "Our legal team will appeal this decision and continue our tireless efforts to defend the will of the people of California to preserve marriage as the union of a man and a woman."]
[SECOND UPDATE: Ware also issued a written ruling on the recordings of the trial, denying the proponents’ Motion for Order Compelling Return of Trial Recordings. Going a step further, Ware also set "August 29, 2011 at 9 a.m. for a hearing on Plaintiffs’ Cross-Motion to lift the Protective Order on the video recording of the trial" -- a move sought by the plaintiffs to, as lead lawyer Ted Olson put it, to provide "an opportunity ... for the American people to see that trial."
The effort to publicize the trial is a long-term goal of Olson's, who told a group of reporters in May, "If you had been there during this trial and if America had been there during this trial, attitudes would change overnight."
Read the decision: 798.pdf]