Gay Judge’s Fairness Defended

Vaughn Walker

California’s same-sex marriage case started heating up again this week.  And this case now has pieces in three separate courts. 

 On Thursday state Attorney General Kamala Harris and San Francisco City Attorney Dennis Herrera came to the defense of former U.S. District Judge Vaughn Walker, who struck down the voter initiative banning same-sex unions.

Harris and Herrera are sore that supporters of Proposition 8, which banned gay marriage, have called for Walker’s August ruling to be vacated because Walker discussed, after the decision that he has been in a same-sex relationship for a decade.

The proponents of the marriage ban say he should have stepped aside, not because he is gay, but because his status created the potential of a personal benefit — the ability to marry.

Harris and Herrera don’t see it that way.  They say this is “an attack on Judge Walker’s integrity” and a witch hunt that came too late in the case.  They say any suggestion that Walker should have stepped down should have come immediately after initial press speculation a year ago that he is gay.

What to do about the case falls to Chief Judge James Ware, who took over in January after Walker retired from the bench.  Ware was assigned the case after Walker left the bench.

Harris and Herrera argue that Walker is being attacked because he is gay, something they suggest is like other recusal requests that amount to “thinly veiled attempts to disqualify judges based on their race, gender, religious affiliation, or in this case, sexual orientation.”  It is perhaps of interest to note, in light of that argument, that Judge Ware is black.

In Other Court Actions

But this isn’t the only fight in the case.  The motion to set aside Walker’s decision comes after an appeal on the merits of the case had been briefed and argued in the 9th U.S. Circuit Court of Appeals. 

The central question in the appeals court is whether the proponents of Proposition 8, and ProtectMarriage.com, have the right to appeal on behalf of the state of California.

Former Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown, did not step in to defend the constitutionality of Proposition 8 when the federal lawsuit was filed by same-sex couples who wished to marry.  With noone else to defend the initiative, the proponents of Proposition 8 stepped in.

So the issue became, did individuals supporting the marriage ban have the right to stand in for the state.  Because that requires an interpretation of state law the 9th Circuit put the appeal on hold and asked the California Supreme Court to weigh in on the question of “standing” for the Proposition 8 supporters. 

 Trial Video

 Then there is the separate question of the trial videotapes that Walker had made in a plan to broadcast the case to a few other courts and law schools around the country to allow wider public viewing of the trial.  But the U.S. Supreme Court said he could not broadcast the trial beyond the courthouse walls.  Following the trial, Walker used a brief snip of the testimony during a talk at an Arizona law school.  The Proposition 8 proponents have challenged this as well.

On Thursday, Walker’s private attorney Ephraim Margolin sent the judge’s chambers copy of the video to Judge Ware until the dispute is resolved.  But Margolin noted that chambers records are the personal property of federal judges and remain so even when they leave the bench.

The official court record of the trial includes the videotape and is currently part of materials held by the 9th Circuit during the appeal.

 Case: Perry v. Brown, No. C09-2292JW

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