SAN FRANCISCO, Calif. Attorneys for California's marriage amendment Proposition 8, citing what they believe to be a conflict of interest with the trial judge who ruled the measure unconstitutional, filed a federal motion April 25 to have his decision overturned.
They argue that U.S. District Judge Vaughn Walker should have recused himself from the case because he could have benefited personally from the ruling because he is in a long-term gay relationship.
"The American people have a right to a fair judicial process, free from even the appearance of bias or prejudice," said Andrew Pugno, general counsel for the official proponents of Prop 8.
Federal law, he said, requires a judge to disqualify himself whenever the jurist knows that he has any personal interest that could be substantially affected by the outcome of the case, or any other circumstances in which the judge's impartiality might reasonably be questioned.
The Alliance Defense Fund, which has several attorneys working on the case, said Walker's actions created an unfair playing field on several key points and should have "disqualified himself because an objective observer might reasonably have questioned his impartiality due to his 10-year-long same-sex relationship, his failure to disclose that relationship at the outset of the case, his failure to disclose whether he has any interest in marrying his same-sex partner, and his unprecedented and irregular actions throughout the lawsuit."
"Judge Walker's 10-year-long same-sex relationship creates the unavoidable impression that he was not the impartial judge the law requires," Pugno said. "He was obligated to either recuse himself or provide full disclosure of this relationship at the outset of the case. These circumstances demand setting aside his decision."
Need to disclose
In his statement Pugno was careful not to suggest that gay or lesbian judges were not qualified to preside over such a case, but that Walkerby virtue of his personal lifestood to benefit from his own ruling.
"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. "Surely, no one would suggest that Judge Walker could order state officials to issue a marriage license to him and his partner. Yet it must be presumed that that is precisely what has occurred."
Walker's homosexuality was widely reported on the Internet before and during the trial, but the judge had not publicly discussed the issue or his relationship until after his recent retirement.
Chad Griffin, board president of the American Foundation for Equal Rights, said the request to vacate the ruling was a personal attack.
"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," he said. "They're attempting to keep secret the video of the public trial and they're attacking the judge because they disagree with his decision. Clearly, the proponents are grasping at straws because they have no legal case."
Last summer, Walker ruled that the Proposition 8, which was approved by a majority of California voters, was unconstitutional.
In his August ruling Walker determined that gays and lesbians have a constitutional right to marry the person of their choice and that the constitutional amendment created by Proposition 8 "unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation."
He later added that plaintiffs in the case "seek to have the state recognize their committed relationships, and plaintiffs' relationships are consistent with the core of the history, tradition and practice of marriage in the United States."
Protect Marriage immediately appealed the decision and the appeals court issued a stay preventing same-sex marriages statewide until the appeal process is concluded.
Robert Tyler, general counsel for Advocates for Faith & Freedom, is representing an Imperial County official who is seeking a right to appeal Walker's ruling. The Murrieta attorney said he believes bias was present during the legal proceedings.
"The tenor of the trial made it clear that Judge Walker was not operating with impartiality," Tyler said. "I have never seen a judge handle a case in such a reckless manner and his decision should be vacated."
During the trial, Walker raised eyebrows by requiring proponents of Proposition 8 to turn over all of its internal communications, including e-mails and donor lists, and declined to issue a stay during the appeal. He also ordered that the trial be broadcast, which is contrary to existing federal policy disallowing cameras in court. The U.S. Supreme court subsequently blocked the videotape broadcasts, but Walker still ordered that the hearings be taped for his private review during the proceedings. Since his retirement, Walker has publicly used those tapes, prompting a separate motion before the court to stop the practice.
Supporters of Proposition 8 argued that the tapes could be used to intimidate witnesses. In successfully arguing their motion before the high court, Protect Marriage attorneys cited post-election harassment of donors, some of which lost their jobs over supporting the measure. The pattern of harassment resurfaced on Monday when, in a related issue, the attorney who had been hired by Congress to defend the national Defense of Marriage Act, had to leave his law firm to pursue the case after the partners were pressured by gay rights advocates.
Despite the immense public pressure by gay lobbyists, Pugno and other Protect Marriage attorneys believe the law is clearly on their side. The latest motion was filed with Judge James Ware, who replaced Walker after his retirement earlier this year. Both are appointees of George H.W. Bush.
"Under governing California law Judge Walker currently cannot marry his partner," Pugno said in his recent statement. "But his ruling in this case, if ultimately upheld, would give him a right to do so.
"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."