Prop. 8 Supporters Ask Court to Throw Out Gay Judge's Ruling

Proponents of California's Proposition 8 are urging the district court to vacate retired Judge Vaughn Walker's ruling that marriage is a constitutional right for same-sex couples based on new evidence suggesting he was likely prejudiced because of his own long-term same-sex relationship.

The legal team defending the California marriage amendment in federal court filed a motion Monday to vacate the district court decision that struck down Prop. 8. The motion argues that now-retired Walker violated federal law by not recusing himself from the Perry v. Brown case.

The legal team argues that an objective observer might reasonably have questioned his impartiality due to his 10-year same-sex relationship, his failure to disclose that relationship at the outset of the case and his failure to disclose whether he has any interest in marrying his same-sex partner.

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"The American people have a right to a fair judicial process, free from even the appearance of bias or prejudice," said Andy Pugno, general counsel for "Judge Walker's 10-year-long same-sex relationship creates the unavoidable impression that he was not the impartial judge the law requires."

Last August, Walker ruled that the Prop. 8 marriage amendment that defines marriage as between a man and a woman was unconstitutional and determined that same-sex couples do have the right to marry.

His ruling was a blow to the 52 percent of Californians who voted to pass Prop. 8 in November 2008.

During the time of the ruling, there were several rumors circulating in the media that Walker himself was gay and in a relationship. Months after he gave his ruling, Walker retired from the U.S. District Court of Northern California.

Earlier this month, Walker opened up about his sexuality in a meeting with federal court reporters. He told the reporters he saw no reason to step down from the Prop. 8 case because he is gay.

Walker told the reporters, "I don't think it's relevant. I never thought it was appropriate to recuse myself from that case."

Steve Crampton, Liberty Counsel's vice president of Legal Affairs, questioned Walker's action saying, "The whole timing of his disclosure is curious."

While his sexuality may have been irrelevant to the case, Mathew Staver, Liberty Counsel president and founder, said his same-sex relationship is an important factor.

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. Reuters also published details of the relationship, describing Walker's partner as a physician and asserting that the relationship had been going on for 10 years. Walker's April 6th public admission that he is indeed gay lends truth to those reports of a same-sex relationship.

The possible conflict of interest lies in his relationship, not necessarily his sexuality, Staver affirmed. In an earlier interview, Staver said Walker's ruling means he too could be lawfully married to his same-sex partner. Therefore, Walker's long term-relationship may have caused him to have a biased opinion of the case, he contended.

"This is something he had a vested interest in," said Staver.

He too believes that Walker should have recused himself or at minimum disclosed his relationship.

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."

Crampton said Walker's relationship certainly creates a reasonable doubt as to his impartiality. His decision to come out publicly after the case raises the question of bias.

"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."

The legal team also suggests that the George H. W. Bush appointee's "irregular" behavior during the proceedings may already be proof of bias or prejudice.

Walker allowed the trial to be videotaped for a later broadcast on YouTube despite the negative effects it could have had on witnesses. According to Associated Press reports, Walker said he allowed the YouTube taping to provide a giant civics lesson for as many people as possible.

Attorney Michael Kirk countered that taping may cause some witnesses, conscious that they are testifying to "untold thousands or millions ... to become more timid" while inducing others to be overly dramatic.

Crampton said Walker had also "insisted" that the case be "a full-blown trial."

Walker eventually ruled against the voter-approved amendment, writing in his 136-page opinion, "Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians.”

He continued, "The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite sex couples."

Staver said the opinion reads like that of an advocate rather than a judge. "Now we know why," he concluded.

When asked about the Monday request to vacate Walker's ruling, Staver said, "I think it's about time that Protect Marriage made this filing."

The Monday brief urging the district court to vacate the 2010 decision is one in a series of attempts to appeal Walker's Prop. 8 ruling. The legal team has already 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.

Staver said that if Walker's decision is vacated, then the 9th Circuit Court appeal will be dropped and the Perry v. Brown case will have to be retried with another judge.

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