Judge Ware Denies Motion To Vacate Decision Overturning Prop 8

Judge Walker, the judge who ruled against the defendants in the Proposition 8 case (the “defendants,” in this case, are those defending Prop 8; the “plaintiffs” are those who sued to have Prop 8 overturned), retired earlier this year, and in April mentioned that he is gay and has been in a long-term relationship. (It was well-known that Walker is gay, but not that he was in a long-term relationship).

Prop 8 defendants responded with a motion to vacate Judge Ware’s decision. The defendants were at pains to explain that they are not saying that a gay judge could not be unbiased in a case such as this; rather, it is Walker’s inferred desire to marry a man that would cause a reasonable person to doubt Walker’s ability to be a fair judge. According to their motion:

…no judge ‘is permitted to try cases where he has an interest in the outcome….’ Surely, no one would suggest that Chief Judge Walker could issue an injunction directing a state official to issue a marriage license to him. Yet on this record, it must be presumed that that is precisely what has occurred.

The plaintiffs argued that this was a fig leaf, and that in effect defendants were asking for Walker’s decision to be vacated because Walker is gay. From oral argument (pdf link):

They’re challenging Judge Walker because he’s gay. There is no question about it. And this notion that they say, “Well, it’s not because he’s gay. It’s because he has a relationship and he didn’t disclose it.” That’s exactly the kind of argument that litigants have made in gender cases, in race cases. There is always an effort to sort of say, “Well, we’re not attacking the judge because of their status. It’s something else.”

Judge Higginbotham in the famous Pennsylvania case that we have cited [in which litigants challenged a Black judge in a case involving racial issues], where he explains the litigants challenged him because he gave a speech to a particular group. There is always something else that’s added into the mix to try to deflect from the fact the litigants are challenging a judge based on their status as a member of the group whose rights may be affected by the case.

Judge Mukasey, future Attorney General, but then Judge Mukasey when litigants challenged him, basically because he was Jewish, called it the same rancid wine in a different bottle.

And that’s what we have here, your Honor.

Except on one minor issue (involving the timeliness of the defendants’ motion), Judge Ware found for the proponents. Here are some quotes from Judge Ware’s decision (pdf link), with some parts bolded by me for the benefit of skimmers:

Requiring recusal because a court issued an injunction that could provide some speculative future benefit to the presiding judge solely on the basis of the fact that the judge belongs to the class against whom the unconstitutional law was directed would lead to a Section 455(b)(4) standard that required recusal of minority judges in most, if not all, civil rights cases. Congress could not have intended such an unworkable recusal statute. […]

Defendant-Intervenors contend that Judge Walker should be disqualified because his same-sex relationship gave him a markedly greater interest in a case challenging restrictions on same-sex marriage than the interest held by the general public. The Court rejects this argument on two readily apparent grounds.

First, it is inconsistent with the general principles of constitutional adjudication to presume that a member of a minority group reaps a greater benefit from application of the substantive protections of our Constitution than would a member of the majority. The fact that this is a case challenging a law on equal protection and due process grounds being prosecuted by members of a minority group does not mean that members of the minority group have a greater interest in equal protection and due process than the rest of society. In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right. […]

Second, disqualifying Judge Walker based on an inference that he intended to take advantage of a future legal benefit made available by constitutional protections would result in an unworkable standard for disqualification. Under such a standard, disqualification would be based on assumptions about the amorphous personal feelings of judges in regards to such intimate and shifting matters as future desire to undergo an abortion, to send a child to a particular university or to engage in family planning. So too here, a test inquiring into the presiding judge’s desire to enter into the institution of marriage with a member of the same sex, now or in the future, would require reliance upon similarly elusive factors. […]

Defendant-Intervenors contend that consideration of the fact that Judge Walker “has been involved in a 10-year (8-year at the time that Plaintiffs commenced this suit) committed same-sex relationship” would lead a reasonable person to question Judge Walker’s impartiality. (Motion at 11-12.) The Court finds that disqualification under Section 455(a) on the basis of this fact fails, because it depends upon the assumption that a judge who is in a relationship has an interest in getting married which is so powerful that it would render that judge incapable of performing his duties. Under Ninth Circuit law, however, this assumption is unreasonable. A well-informed, thoughtful observer would recognize that the mere fact that a judge is in a relationship with another person–whether of the same or the opposite sex–does not ipso facto imply that the judge must be so interested in marrying that person that he would be unable to exhibit the impartiality which, it is presumed, all federal judges maintain.[…]

To assume otherwise is to engage in speculation about a judge’s motives and desires on the basis of an unsubstantiated
suspicion that the judge is personally biased or prejudiced. Mere speculation of that nature does not trigger the recusal requirements of Section 455(a). […]

Defendant-Intervenors posit that Judge Walker’s silence about the existence of his relationship, and about whether he and his partner have any interest in marrying, would necessarily give rise, in the mind of a reasonable observer, to an assumption that Judge Walker’s silence indicates that he was not impartial.19 However, silence is by its very nature ambiguous, and thus is open to multiple interpretations. […]

…The requirement of disclosure on the record is conditional on the finding that there was a valid ground for disqualification under Section 455(a). However, as discussed previously, the Court finds that Judge Walker had no valid ground for disqualifying himself under Section 455(a). Therefore, the disclosure requirement of Section 455(e) was not triggered, and Judge Walker had no obligation under Section 455(e) to disclose his relationship status on the record. […]

Defendant-Intervenors cite no case suggesting that a judge has a duty to disclose information about his personal life when such information does not pertain to the judge’s association with an individual having a clear, concrete stake in the outcome of the litigation, and the Court is not aware of any cases standing for that proposition.

In fact, the Court observes that Judge Walker, like all judges, had a duty to preserve the integrity of the judiciary. Among other things, this means that if, in an overabundance of caution, he were to have disclosed intimate, but irrelevant, details about his personal life that were not reasonably related to the question of disqualification, he could have set a pernicious precedent. Such a precedent would be detrimental to the integrity of the judiciary, because it would promote, incorrectly, disclosure by judges of highly personal information (e.g., information about a judge’s history of being sexually abused as a child), however irrelevant or time-consuming.

Contrary to the intent of Section 455, which was designed to preserve judicial integrity through practices of transparency, it is clear that fostering the practice of commencing a judicial proceeding with an extensive exploration into the history and psyche of the presiding judge would produce the spurious appearance that irrelevant personal information could impact the judge’s decision-making, which would be harmful to the integrity of the courts.

Finally, the presumption that “all people in same-sex relationships think alike” is an unreasonable presumption, and one which has no place in legal reasoning. The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief. On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits. The Motion fails to cite any evidence that Judge Walker would be incapable of being impartial, but to presume that Judge Walker was incapable of being impartial, without concrete evidence to support that presumption, is inconsistent with what is required under a reasonableness standard.

Judge Ware’s decision is completely unsurprising. What was surprising was that Prop 8 defendants were so desperate that they mounted this ugly and legally dubious attack on Judge Walker in the first place. Judges in future appeals on this case will be free to discard Judge Walkers legal reasoning, but they will probably defer to Walker’s findings of fact; the Prop 8 defendants apparently believe that those findings of facts are very damaging to their case.