(619) 505-7777

Attacks against Proposition 8 trial judge are denounced

SAN FRANCISCO – Attorneys for the plaintiffs in Perry v. Brown filed a brief late Monday with the U.S. Court of Appeals for the Ninth Circuit answering claims by the proponents of Proposition 8 that the judge who struck down the discriminatory law – now-retired U.S. District Chief Judge Vaughn R. Walker – should have recused himself because he is gay and in a same-sex relationship.

Proponents’ baseless and offensive attempt to impugn Chief Judge Walker’s reputation and objectivity was unequivocally rejected by the U.S. District Court. In a powerful and historic ruling, U.S. District Chief Judge James Ware reaffirmed the basic fact that all judges – gay or straight – are presumed to be impartial, and that every citizen has an equal interest in the outcome of constitutional cases.

“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," Chief Judge Ware said.

"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.”

Chief Judge Ware further noted that accepting proponents’ argument would set a “pernicious precedent … detrimental to the integrity of the judiciary.”

In the filing, plaintiffs, led by distinguished attorneys Theodore B. Olson and David Boies, urged the Court of Appeals to affirm Chief Judge Ware’s decision.

“Having spent years trying to strip gay and lesbian Californians of the right to marry, Proponents now aim to strip gay and lesbian judges of their ability – and their duty – to preside over cases challenging such discrimination. Proponents’ motion to vacate judgment is nothing more than a belated and regrettable attempt to divert attention from the merits of plaintiffs’ constitutional challenge to Proposition 8 by attacking the judge who presided over the case. The Court should not countenance this tactic, which has been tried repeatedly in civil rights cases throughout history, and has been rejected every time.”

Plaintiffs’ brief argues that Judge Ware’s ruling should be affirmed because:

(1) no reasonable person could reasonably question Judge Walker’s impartiality based on his sexual orientation or his same-sex relationship;

(2) Judge Walker has no interest in this case apart from generalized interests based on his sexual orientation and same-sex relationship;

(3) granting proponents’ request to vacate Judge Walker’s ruling would be a drastic and inappropriate remedy that would result in injustice to plaintiffs in this case, produce injustice in other cases by encouraging litigants to seek recusal of minority judges, and undermine the public’s confidence in the judicial process.

Proponents have also appealed plaintiffs’ successful motion to vindicate the public’s right to see what happened during the Perry trial. In September, Chief Judge Ware ordered the digital recording of the trial to be unsealed. Last week, the Court of Appeals set an expedited briefing schedule and scheduled oral arguments for the week of Dec. 5, 2011, in San Francisco.

“The desperation of the anti-marriage forces increases by the day,” said Chad Griffin, AFER board president. “Proponents will stop at nothing to ensure that gay and lesbian Americans remain second-class citizens. The shameful attacks on Chief Judge Walker are an insult to all Americans who trust in the integrity of the federal judiciary and its commitment to the rule of law.”