Proponents seek to erase Prop 8 strikedown because judge did not disclose same-sex relationship
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.
"Proponents of Proposition 8 certainly are getting desperate," said Legal Director Jon Davidson. "This reeks of a Hail Mary attempt to assail Judge Walker's character because they are unable to rebut the extremely well-reasoned ruling he issued last year."
Davidson added: "To say that Judge Walker should have disclosed his 10-year relationship with another man or that it made him unfit to rule on Proposition 8 is like saying that a married heterosexual judge deciding an issue in a divorce proceeding has to disclose if he or she is having marital problems and might someday be affected by legal rulings in the case. Or that any judge who professes any religious faith is unable to rule on any question of religious liberty or, at a minimum, must disclose what his faith teaches. Much like a suggestion that a female judge could not preside over a case involving sexual harassment or an African American judge could not preside over a case involving race discrimination, Proposition 8's supporters improperly are suggesting that a judge will rule in favor of any litigant with whom he shares a personal characteristic."
The American Foundation for Equal Rights, which is sponsoring the federal Prop 8 case, called the motion absurd.
"This motion is yet another in a string of desperate and absurd motions by Prop 8 Proponents who refuse to accept the fact that the freedom to marry is a constitutional right," said AFER Board President Chad Griffin. "They're attacking the judge because they disagree with his decision."
Voter-passed Prop 8 amended the California Constitution in 2008 to re-ban same-sex marriage, which had been legal in the state for 4 1/2 months. When Walker struck down Prop 8 as unconstitutional in August 2010, the defendants, including California's governor and attorney general, did not appeal the ruling. ( The current officeholders have not done so either. ) As a result, the ballot measure's proponents appealed the ruling to the 9th U.S. Circuit Court of Appeals, where the case is currently paused because the 9th Circuit is unsure if ballot-measure proponents have a legal right to defend a state ballot measure in federal court.
The 9th Circuit has asked the California Supreme Court for its opinion on that question, and the California Supreme Court is not expected to answer until the end of the year.
The hearing on the motion to vacate is scheduled for 9 a.m. June 13 in San Francisco before Walker's successor, James Ware, chief judge of the U.S. District Court for the Northern District of California.
At the same hearing, Ware will deal with dueling requests that the 13 days of video of the Prop 8 trial be either confiscated from Walker and the gay side's attorneys or released to the public.
Firm withdraws from DOMA defense
After President Barack Obama instructed the Justice Department in February to stop defending the Defense of Marriage Act in federal lawsuits, House of Representatives leaders took up the statute's defense and hired the law firm King & Spalding, and attorney Paul Clement, to defend the prohibition on federal recognition of states' same-sex marriages.
King & Spalding then was strongly criticized by gay rights activists for accepting the job, in part because the firm was considered to have an LGBT-friendly reputation.
On April 25, King & Spalding withdrew from the matter, with its chairman saying that "the process used for vetting this engagement was inadequate."
It is not known if, or to what extent, the gay protests played a role in the firm's decision. Some reports speculated that, instead, there could have been concern over wording in the contract with the firm that prohibited the firm's partners and employees from lobbying or advocating for or against legislation in the House or Senate that would alter DOMA.
Following King & Spalding's withdrawal, Clement resigned from his job and accepted a position with another firm, where he said he will continue to defend DOMA.
" ( R ) epresentation should not be abandoned because the client's legal position is extremely unpopular in certain quarters," Clement said. "I recognized from the outset that this statute implicates very sensitive issues that prompt strong views on both sides. But having undertaken the representation, I believe there is no honorable course for me but to complete it."
Lambda Legal praised King & Spalding's withdrawal, saying, "We welcome the firm back to the right side of history."
The head of the National Center for Lesbian Rights, Kate Kendell, said that "DOMA does not deserve a lawyer."
"The Sixth Amendment guarantee of the right to counsel applies to individuals in criminal cases," Kendell said, not to "unjust laws."
In abandoning its own defense of DOMA on Feb. 23, the Justice Department said it took that action because Obama had concluded that "classifications based on sexual orientation should be subject to a more heightened standard of ( legal ) scrutiny" and, under that standard, DOMA is unconstitutional.
NCLR Legal Director Shannon Minter called the heightened-scrutiny determination "history-changing."
"The president and the attorney general were ... right to conclude that because LGBT people have suffered a long history of discrimination in this country, laws that target people based on their sexual orientation are highly likely to be based on prejudice and should be presumptively considered unconstitutional," Minter said. "The president's leadership on this issue has forever changed the landscape for LGBT people in this country."
The section of DOMA in question reads: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."
Another section of DOMA purports to allow states to refuse to recognize other states' same-sex marriages, a right states likely already had before DOMA became law in 1996.
No same-sex marriage for RI this year
The push to legalize same-sex marriage in Rhode Island this year is over because of a lack of support in the Senate, openly gay House Speaker Gordon Fox said April 27.
Fox said he would try to pass a civil-union law instead.
Lobby group Marriage Equality Rhode Island expressed "staunch opposition" to that plan.
"The General Assembly will essentially be legalizing a two-class system that subjects thousands of Rhode Island same-sex couples to discrimination," said MERI board chair Martha Holt. "We are extremely disappointed in the lack of leadership at the state House and we would urge Speaker Fox to rethink sponsoring legislation that would create a second class of citizens."
Freedom to Marry's national campaign director, Marc Solomon, called Fox's move "a serious miscalculation."
"With support for the freedom to marry topping 60 percent -- higher than in any other state in the country -- and with a strongly supportive governor, the Rhode Island House should send a marriage bill -- and nothing less -- to the Senate now," Solomon said.
Assistance: Bill Kelley
