The lawyers representing the two same-sex couples who filed a lawsuit against California's Proposition 8 says former Judge Vaughn Walker's sexuality and involvement in a same-sex relationship are not enough to prove he made a ruling based on a personal desire to be married. Conservatives, on the other hand, say doubt about his ability to serve impartially should have been enough for him to disclose it or step down from the case.
Lawyers Theodore Olson and David Boies said in a statement Friday that Prop. 8 supporters' April motion to vacate Walker's decision striking down the traditional marriage amendment due to potential bias is "factually groundless and legally insupportable."
The former attorneys to George W. Bush and Al Gore in the contested 2000 presidential election assert that attorney Andy Pugno and ProtectMarriage.com "lack any factual basis to assume that Judge Walker wishes to marry."
The statement continued to state that Pugno wrongly assumes that Walker's sexuality and same-sex relationship mean that he wanted marriage for himself. The two denounced that argument as "speculation" that "does not come close to meeting the statutory requirements for compelling a judge's recusal."
While it is unclear whether or not Walker wanted to actually marry his partner, Prop. 8 supporters say his relationship does allow for reasonable doubt and is thereby grounds for a recusal.
The U.S. Code 28, Section 455 (a) states, "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." U.S.C. 28 Section 455 (b) (1) also states that one of circumstances disqualifying a justice, judge or magistrate judge occurs when he/she "has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding."
Liberty Counsel Founder and President Mathew Staver says even if Walker felt his relationship posed no threat to the case, he should have still at least disclosed it to the court and allowed his fellow justices to decide whether or not he should continue to try the case.
Instead, Walker remained suspiciously quiet.
Liberty Counsel's vice president of Legal Affairs, Steve Crampton, told the Christian Post, "The whole timing of his disclosure is curious."
The former Chief U.S. District judge opened up about his sexuality during a meeting last month. In the meeting, Walker told federal court reporters he is gay. After the meeting, Reuters also published details of his relationship, describing Walker's partner as a physician and asserting that the relationship had been going on for 10 years.
However, allegations of Walker's sexuality and relationship with a male physician first arose years earlier during the Prop. 8 case.
During the 2009 proceedings, The San Francisco Chronicle reported that Walker was gay and that it was an "open secret." Additionally, news site Salon reported in an August 2009 article that Walker had been reportedly seen with his same-sex partner at professional and social events.
Walker never confirmed the allegations, choosing instead to wait until he had retired and nearly a year had passed since his ruling to come out publicly.
"The fact that he disclosed all of this after" the case, noted Crampton, "all of this, calls for an explanation and it, in my mind, raises a red flag."
Walker ruled against Prop. 8, the voter-approved amendment establishing marriage to be exclusive to one man and one woman. He wrote in his 136-page opinion, "Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians."
Walker's ruling means he too could potentially be married to his same-sex partner, said Staver. He concludes, "This is something he had a vested interest in."
The District Court has yet to decide whether Walker's ruling will be allowed to stand or not. If the August 2009 decision is vacated, the Perry v. Brown case will have to be retried with another judge.
The ProtectMarriage.com legal team has also appealed the ruling to the U.S. 9th Circuit Court of Appeals, which has, in turn, asked the California Supreme Court to decide whether the group has the legal standing to defend the ballot measure in court. The state high court's ruling is expected sometime this year.