Prop 8 supporters still want judge disqualified

Lawyers file brief claiming Vaughn Walker’s ruling striking down gay marriage ban should be invalidated because he is gay and in a relationship with a man

Walker.Vaughn

JUDGING THE JUDGE | In this July 8, 2009 file photo, Judge Vaughn Walker is seen in his chambers at the Phillip Burton Federal Building in San Francisco, Calif. Lawyers for the sponsors of California’s voter-approved same-sex marriage ban have filed briefs with the appeals court asking that Walker’s ruling striking down Prop 8 be invalidated because he is gay. (San Francisco Chronicle, Paul Chinn/Associated Press)

LISA LEFF  |  Associated Press
editor@dallasvoice.com

SAN FRANCISCO — The sponsors of California’s voter-approved same-sex marriage ban have asked a federal court to invalidate the ruling of the federal judge who struck it down, saying the judge should be disqualified because he did not divulge he was in a long-term relationship with another man.

Lawyers for the Proposition 8’s backers filed their open brief on the issue late Monday, Oct. 3, with the 9th U.S. Circuit Court of Appeals in San Francisco. They claim that another federal judge erred when he concluded U.S. Chief Judge Vaughn Walker’s relationship status was irrelevant to Walker’s ability to fairly preside over the trial on the measure’s constitutionality.

In their brief, they argue that Walker’s impartiality can be questioned because he is “similarly situated” to the plaintiffs who sued to overturn Proposition 8, two same-sex couples in established relationships. They also said that while Walker has not indicated if he and his partner wish to marry, research presented as evidence in the trial found that two-thirds of unmarried same-sex couples would tie the knot if they could.

“Given that Judge Walker was in a long-term, same-sex relationship throughout this case (and
for many years before the case commenced), he was, in Plaintiffs’ own words, ‘similarly situated to (Plaintiffs) for purposes of marriage,’” the lawyers wrote. “And it is entirely possible — indeed, it is quite likely, according to Plaintiffs themselves — that Judge Walker had an interest in marrying his partner and therefore stood in precisely the same shoes as the Plaintiffs before him.”

Walker’s successor, Chief Judge James Ware, rejected similar arguments in late August, after the coalition of religious conservative groups that qualified Proposition 8 for the November 2008 ballot made the first attempt in the nation to disqualify a sitting judge based on sexual orientation.

Ware said the presumption that Walker could not be unbiased was “as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief.”

In an apparent response, the coalition’s attorneys wrote that they were not suggesting that gay or lesbian judges could never preside over cases involving gay rights questions.

“We know of no reason to believe, for example, that Judge Walker would have any personal interest in the outcome of litigation over, say, the constitutionality of the military’s ‘don’t ask, don’t tell’ policy,” they said. “Nor would there be any issue with a gay or lesbian judge hearing this case so long as a reasonable person, knowing all of the relevant facts and circumstances, would not have reason to believe that the judge has a current personal interest in marrying.”

The 9th Circuit already is reviewing whether Walker properly concluded the ban violates the rights of gay Californians and if Proposition 8’s sponsors were eligible to appeal his ruling once the state’s attorney general and governor declined to challenge it. A decision could come down at any time.

This article appeared in the Dallas Voice print edition October 7, 2011.

—  Kevin Thomas

Judge’s gay relationship at issue in Prop 8 case

Judge Vaughn Walker

LISA LEFF  |  Associated Press

SAN FRANCISCO — Rumors swirled that the federal judge who had struck down California’s same-sex marriage ban last summer was gay, but the lawyers charged with defending the measure remained silent on the subject. Their preferred strategy for getting the ruling overturned on appeal was to focus on the law, not a judge’s personal life, they said.

Eight months later, Proposition 8′s proponents and their attorneys have taken a new position. They filed a motion Monday seeking to vacate Chief U.S. District Judge Vaughn Walker’s historic ruling, a move they said was prompted by the now-retired jurist’s recent disclosure that he is in a long-term relationship with another man.

Lawyers for the ban’s backers argue that the judge’s relationship status, not his sexual orientation, gave him too much in common with the couples who successfully sued to overturn the ban in his court. The judge should have recused himself or at least revealed the relationship to avoid a real or perceived conflict of interest, the lawyers say.

“If 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, Chief Judge Walker plainly had an interest that could be substantially affected by the outcome of the proceeding,” wrote attorneys for the coalition of religious and conservative groups that put Proposition 8 on the November 2008 ballot.

They are now asking the judge who inherited the case when Walker retired at the end of February to toss out Walker’s August decision. The 9th U.S. Circuit Court of Appeals already is reviewing its legal merits at the request of the voter-approved measure’s sponsors.

Walker has said that he did not consider his sexual orientation to be any more a reason for recusal than another judge’s race or gender normally would be. A spokeswoman said Monday that the judge wouldn’t comment on the motion.

American Foundation for Equal Rights President Chad Griffin, whose group has funded the legal effort to strike down Proposition 8, scoffed at the notion that the judge’s personal life could imperil his ruling.

Griffin noted that the Obama administration recently had decided to stop defending the federal law that bans recognition of same-sex marriage after determining that it, too, was unconstitutional.

“This motion is another in a string of desperate and absurd motions by the proponents of Proposition 8, who refuse to accept that the freedom to marry is a constitutional right,” he said.

Walker, a 67-year-old Republican appointee, declared Proposition 8 to be an unconstitutional violation of gay Californians’ civil rights. He also ordered the state to stop enforcing the gay marriage ban, but the 9th Circuit put his order on hold while the case is on appeal.

Speculation about Walker’s sexual orientation circulated during the 13-day trial that preceded his decision and after he handed down his ruling. Lawyers for Protect Marriage, the coalition that sponsored Proposition 8, however, had purposely refrained from raising his sexual orientation as a legal issue until Monday.

But they decided it gave them grounds for getting Walker’s decision struck down after the judge disclosed his 10-year relationship this month to a group of courthouse reporters, said Protect Marriage general counsel Andy Pugno.

“We deeply regret the necessity of this motion. But if the courts are to require others to follow the law, the courts themselves must do so as well,” Pugno added.

Indiana University Law School professor Charles Geyh, an expert on judicial ethics, said that without more evidence that Walker stood to personally benefit if same-sex marriages were legal in California, he found it difficult to imagine that the particulars of the judge’s same-sex relationship provided gay marriage opponents with an avenue for reversing his ruling.

“It really implies it would be fine if he were essentially surfing at bars and had a new partner every night because he wouldn’t want to be married,” he said. “I don’t see that as advancing their cause.”

Proposition 8′s sponsors also have been trying to get the federal appeals court to order Walker to return his personal video copy of the trial. The judge has been using a three-minute segment of one of their witnesses being cross-examined for a lecture he’s been giving on cameras in the courtroom.

—  John Wright

Facebook adds civil unions, domestic partnerships to relationship status options

Props to Facebook peeps. The word is spreading about their updates to the relationship status field. The HuffPo posted earlier that “civil union” and “domestic partner” are now listed under the field as options and are being rolled out as we speak.

The changes were made in consultation with Facebook’s Network of Support, a group that includes LGBT [lesbian, gay, bisexual, transgender] organizations such as the Gay and Lesbian Alliance Against Defamation, the Gay, Lesbian, and Straight Education Network, and the Human Rights Campaign.

“As LGBT people face a pathwork of relationship recognition laws, this gives people more tools to adequately describe their relationship,” said Michael Cole, spokesperson for the Human Rights Campaign. “Facebook has been a company that has tried to be inclusive of the LGBT community and this just one sign of it.”

Richard Socarides, president of Equality Matters and former gay rights advisor to president Bill Clinton, echoed Coles’ praise.

from Huffington Post

—  Rich Lopez

4th consecutive poll shows majority of Texans support either civil unions or gay marriage

The 2010 Texas Lyceum poll was released Tuesday, and for the second straight year, more than half of respondents said they support some form of legal relationship status for same-sex couples — whether it be civil unions or marriage.

According to the poll of 725 adult Texans from Sept. 22-30, 24 percent support civil unions, 28 percent support same-sex marriage, and 40 percent oppose both civil unions and gay marriage. That means a total of 52 percent support some form of relationship recognition, with 8 percent apparently not responding to the question.

This support for relationship recognition is actually down from the 2009 Lyceum poll, when 57 percent said they supported either marriage or civil unions, and only 36 percent opposed both.

But it marks the fourth consecutive statewide poll to show that a majority of Texans support either civil unions or marriage.

As Texas Politics Project Director Jim Henson put it in February: “This seems to be rapidly becoming not a question of what’s in public opinion. What’s in public opinion is becoming kind of a settled issue. Now the question is one of leadership and politics.”

—  John Wright