Prop 8 judge not obliged to recuse himself, ruling says

San Francisco, Calif., Jun 16, 2011 / 01:03 am

A homosexual judge who overturned California’s 2008 ballot measure defining marriage as the union between a man and a woman had no obligation to remove himself from the case because of a possible conflict of interest, a federal judge said on June 14.

“The ProtectMarriage.com legal team obviously disagrees with today’s ruling,” said Charles J. Cooper of Cooper & Kirk, lead counsel for Proposition 8 backer ProtectMarriage.com. “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.”

Judge Vaughn R. Walker, a George H.W. Bush appointee, invalidated Prop. 8 in August 2010. He has never said publicly whether he wished to “marry” his partner.

Chief Judge James Ware of the U.S. District Court in San Francisco said 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.”

The judge said it was unreasonable to assume from Walker’s relationship that he had such a great interest in marrying that he was incapable of performing his judicial duties.

Walker’s failure to disclose his same-sex relationship prior to his ruling could mean that he had considered the situation and decided no reasonable observer would conclude that his impartiality was questionable, Ware reasoned.

In a June 13 press conference, Alliance Defense Fund senior legal counsel Austin R. Nimocks said that Walker failed to disclose he had been in a committed same-sex relationship for over 10 years. Nimocks claimed that Walker and his partner had a “direct interest” in the case.

“Judge Walker's course of conduct in this case heightens the appearance of partiality. Indeed, on two separate occasions, for example, his orders in this case have already been reversed, including a dramatic intervention by the United States Supreme Court to stop his effort to televise the trial,” Nimocks said.

Walker’s original decision held that Prop. 8 “unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”

He also declared as a finding of fact that certain religious teachings, including those of Pope Benedict XVI, “harm” homosexuals.