Lawyer Questions Prop 8 ban by Gay Judge

by John M. Curtis
(310) 204-8700

Copyright June 13 2011
All Rights Reserved.                                         

            Lawyers supporting Prop 8’s ban on gay marriage asked newly minted U.S. District Court Judge James Ward to rescind former Chief U.S. District Court Judge Vaughn Walker’s Aug. 4, 2010 ban on Prop 8 due to his failure to disclose his homosexuality, holding a vested interest because of his 10-year-old same-sex domestic partnership.  “It now appears that Judge Walker, at the time the complaint was filed and throughout this litigation, occupied precisely those same shoes as the plaintiffs,” said Prop 8 supporting lawyer Charles Cooper.  Cooper seeks reinstatement of the Nov. 4, 2008 Prop 8, the defense of marriage law, that banned same-sex marriages in California.  When Walker retired in Feb. 2011, it gave Prop 8 proponents renewed hope that a new judge would repair the damage.  Prop 8’s lawyer argues Walker should have recused himself because of his sexual orientation.

            Cooper argued to Ware that Walker’s conflict of interest stemmed from his potential benefit of gay marriage with his long-term domestic partner.  Cooper compared Walker to the two same plaintiffs, Sandy Stier and Kristin Perry, a same-sexed couple that stood to gain gay marriage from Walker’s ruling.  Ware questioned Cooper’s logic, suggesting that Walker intended to marry his domestic partner once Prop 8 was vacated.  “I’m asking you to tell me what fact you would have the court rely on to suggest that Judge Walker wanted to change, not maintain his relationship?” asked Ware, begging the real question.  Race, religion, gender, creed or sexual orientation is not a factor the legal profession recognizes as a conflict of interest.  Cooper’s arguments insult any lawyer or judge believing that one’s race, religion, gender, creed or sexual orientation eclipses impartiality and legal judgment.

            Walker’s Aug. 4, 2010 ruling was based on exhaustive testimony from Prop 8 opponents, proponents and legal experts trying to ferret out the relevant Constitutional issues.  California’s former State Atty. Gen. Jerry Brown, now governor, believed that Prop 8 was probably unconstitutional because it violated the 14th Amendment’s Equal Protection Clause as defined by the 1954 landmark U.S. Supreme Court ruling in Brown v. Board of Education, denying school districts “separate but equal” education.  When the Massachusetts High Court struck down the state’s domestic partnership law in 2003, it did so because in created a “separate but equal” status for gay people, violating Brown v. Board of Education.  Calling Cooper’s arguments “frivolous, offensive an deeply unfortunate,” Prop 8 opponent lawyer Theodore Boutrous Jr. rejected Cooper’s argument about Walker’s homosexuality.

            Proponent’s on Prop 8 would be far better off arguing that a federal judge has no jurisdiction when it comes to voter-approved ballot-initiatives.  Overturning the will of the people in the state’s initiative process disenfranchises voters, thereby violating voters’ due process under the 14th Amendment.  Crying foul because of Walker’s sexual orientation is a slippery legal strategy.  “It’s not some news flash that Judge Walker was in a same-sex relationship,” said Boutrous.  “They are targeting Judge Walker because he is gay,” opening up a can of worms for Cooper.  Getting Judge Ware of overturn Walker’s Aug. 4, 2010 ruling, effectively voiding Prop 8, on the basis of Walker’s sexual orientation would violate Walker’s civil rights.  “There was probably the same kind of struggle when race or gender were the issue,” said Ware, hinting that he would not overturn Walker’s ruling.

            Judicial impartiality cannot be compromised because of race, religion, gender, creed or sexual orientation.  Suggesting otherwise turns the legal system on its head by second-guessing intrinsic characteristic of third-parties like judges.  If Ware rules in favor of Prop 8, he’d raise doubts on the impartiality of all minority judges, with respect to race, religion, gender, creed or sexual orientation.  After Walker’s retirement in Feb. 2011, he admitted his homosexuality, causing outrage among Prop 8 proponents, calling foul.  Going into federal court arguing that sexual orientation influenced Walker’s ruling was bound to fail.  Prop 8 proponent’s attorney Cooper also asked Ware to ban Walker from using videotaped transcripts of the trial in which he overturned Prop 8 in future speaking engagements.  Past Supreme Court rulings prohibit judges from broadcasting outside the federal courts.   

           Proponents of Prop 8 have an uphill battle asking Judge Ware to reverse Judge Walker’s ban on Prop 8.  Using Walker’s sexual orientation or knowledge about his same-sex domestic partnerships runs afoul with federal anti-discrimination laws and statues that prohibit judges from using race, religion, gender, creed or sexual orientation to prove bias in legal cases.  Had Prop 8 proponents stuck to the constitutionality of overturning a valid California ballot initiative, they would have been better off.  No sane federal court judge would wreck his reputation using race, religion, gender, creed or orientation as a basis of overturning a legitimate judicial ruling.  Prop 8 proponents don’t want to accept established Constitutional precedent for why he ruled against the voter-approved ballot initiative.  Before initiatives go on the ballot, they should be vetted first by the California attorney general.

John M. Curtis writes politically neutral commentary analyzing spin in national and global news.  He's editor of OnlineColumnist.com.and author of Dodging the Bullet and Operation Charisma.

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