Judge Walker's Same-Sex Relationship Should Invalidate Prop 8 Ruling Say Foes

By Steve Williams -

Judge Vaughn Walker who ruled to overturn California's gay marriage ban in August, 2010, recently opened up about his private life and confirmed what has been an open secret for years: that he is in fact gay and in a relationship. In a court filing this week, Prop. 8 backers ProtectMarriage argue that this decade-long same-sex relationship should invalidate Vaughn Walker's ruling because, they claim, he must be biased.

From the LA Times:

In a court filing, the sponsors of the ban on gay marriage, ProtectMarriage, asked the chief judge of the federal court in San Francisco to nullify last August's ruling by former U.S. District Chief Judge Vaughn R. Walker, who retired earlier this year.

ProtectMarriage said Walker should have disclosed his involvement with his male partner before presiding over the marriage trial because it constituted a conflict of interest.

[...]

"Judge Walker's 10-year-long same-sex relationship creates the unavoidable impression that he was not the impartial judge the law requires," ProtectMarriage argued in the legal filing.

Andy Pugno, a lawyer for ProtectMarriage, said the group was not suggesting that it would be inappropriate for any gay or lesbian judge to sit on the case. "Rather, our motion is all about the fundamental principle that no judge is permitted to try a case where he has an interest in the outcome," Pugno said.

Erwin Chemerinsky, dean of law at UC Irvine and an expert in the federal constitution, said "there is no chance whatsover" that Walker's ruling would be voided because the judge failed to tell the backers of Proposition 8 that he was gay.

"No judge is going to say that another judge has a duty to declare his or her sexual orientation," the law professor said.

He said that would be akin to asking black judges to recuse themselves from race discrimination cases or female judges to remove themselves from litigation involving sex bias.

Critics point out that ProtectMarriage was fully aware of Walker's sexual orientation before the trial but the group never asked the judge to recuse himself, preferring to wait until after the trial to grumble that they never got a fair hearing (although the defense was widely criticized as being lackluster).

The 9th Circuit Court of Appeals is currently waiting on the California Supreme Court deciding whether ProtectMarriage as defendant-intervenors have standing enough to even be appealing the case before the 9th Circuit. If it is determined they lack standing, it is likely the 9th Circuit will dismiss the case and Judge Vaughn Walker's ruling will go into effect.

The state's administration would usually defend the law in such cases, but the anti-gay marriage group ProtectMarriage intervened when both the then governor Arnold Schwarzenegger and the then attorney general Jerry Brown declined to do so because they believed the 2008 ballot measure was unconstitutional.

Although ProtectMarriage was allowed to intervene in the case, as defendant-intervenors the right to defend the law at appeal was not automatically granted, as Walker noted in his original ruling.

In accepting the case, the 9th Circuit Court of Appeals stated that the defendant-intervenors would have to prove their standing in order for the appeal to go ahead. The 9th Circuit called on the California Supreme Court to advise whether any state law would give the intervenors standing, perhaps indicating that the federal court was doubtful that, without such a law, the appeal could continue.

With this decision factored in, it is estimated that the 9th Circuit will rule sometime in early 2012.