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Proposition 8 ruling should be voided because gay judge was biased, backers say [Updated]


In another swing at the judge who declared Proposition 8 to be unconstitutional, backers of the measure Monday asked that his decision be voided because he failed to disclose that he was gay and in a long-term relationship.

In a court filing, the sponsors of the ban on gay marriage, ProtectMarriage, asked the chief judge of the federal court in San Francisco to nullify last August's ruling by former U.S. District Chief Judge Vaughn R. Walker, who retired earlier this year.

ProtectMarriage said Walker should have disclosed his involvement with his male partner before presiding over the marriage trial because it constituted a conflict of interest.

Walker earlier this month publicly discussed his sexual orientation, though it was widely known even before last year's trial. During pretrial interviews, The Times asked attorneys for ProtectMarriage whether they would make an issue of Walker's sexual orientation. They declined to comment.

In their legal filing, the lawyers said Walker's public acknowledgment of his long-term relationship provides fuel for overturning his judgment.

[Updated, 4:50 p.m.: "Judge Walker's 10-year-long same-sex relationship creates the unavoidable impression that he was not the impartial judge the law requires," ProtectMarriage argued in the legal filing.

Andy Pugno, a lawyer for ProtectMarriage, said the group was not suggesting that it would be inappropriate for any gay or lesbian judge to sit on the case. "Rather, our motion is all about the fundamental principle that no judge is permitted to try a case where he has an interest in the outcome," Pugno said.

Erwin Chemerinsky, dean of law at UC Irvine and an expert in the federal constitution, said "there is no chance whatsover" that Walker's ruling would be voided because the judge failed to tell the backers of Proposition 8 that he was gay.

"No judge is going to say that another judge has a duty to declare his or her sexual orientation," the law professor said.

He said that would be akin to asking black judges to recuse themselves from race discrimination cases or female judges to remove themselves from litigation involving sex bias.]

ProtectMarriage already has asked the U.S. 9th Circuit Court of Appeals to order Walker to return video recordings of the trial. Walker has used a snippet from the testimony when giving lectures on cameras in the courtroom. ProtectMarriage has argued Walker's use of the video violated promises he made to the backers of the measure and defied the U.S. Supreme Court.


Attorney leaves Atlanta firm after it backs out of DOMA defense

Gay marriage in California won't resume for now, appeals court rules

California Supreme Court refuses to speed up key ruling in gay marriage case

-- Maura Dolan in San Francisco

Photo: Former U.S. District Chief Judge Vaughn R. Walker spoke at a news conference this month in San Francisco. Credit: Beck Diefenbach / Reuters

Comments () | Archives (86)

Pugno et al are truly desperate and undermine their own credibility with such weak (and lame) arguments. You see, that is why they got their clocks cleaned at the district court level. Has this guy ever litigated any other case of significance besides the prop 8 case? Glad he is not representing the plaintiff's.

My thoughts exactly Dave H.
I saw a great pie chart on the internet today explaning what would happen if gay marriage were legal.

Doesn't matter what the judge does in his personal life. What matters is did he apply the law. The experts say he did. This is desperate clinging to straws. If the judge had been heterosexual, married with children the law doesn't change. Equality for every citizen is still the standard. The proponants of prop 8 seem to want to have an exclusive club with tax benefits, legal benefits and the right to veto others choices.

I am coming around to the idea that government has no business being in the business of pairing off American Citizens. Marriage should be a private personalchoice. You want to get married, dandy. Head off to the local religious location and pay the leader of the faith to bless it. Not religious, fine get a secular person, ( friend, relative,neighbor to say whatever word you want). Go hire an attorney to come up with a legal document establishing rights and responsibilities. Don't want to be married any more. Treat it like the dissolution of any contract The exemption to the contract: Any child must be fully supported by both parents.

This whole thing is laughable. A group called ProtectMarriage wants to ban marriage!

The judge is gay and in a perfectly legal relationship not a marriage.
So if the argument is that traditional marriage is threatened by gay marriage then would a judge in a traditional marriage be also biased against gays?
Many people now feeel differently about this whole gay marriage thing; polls show that it is gaining in public acceptance.
I have the feeling that only a bias against gays is fueling this controversey and not anything really profound or threatening to those of us in traditional marriages.
The more I read about those opposed to gay marriage the more I'm beginning to support gays in their quest for marriage equality.

Couldn't agree more with David H below. What makes a straight judge not biased?

And how many gay judges, one wonders, have systematically ruled against any form of civil rights for gay people because of their own personal biases? And yet they were assumed (by heteros, at least) to have ruled according to law and justice. It's time for the Great American Heterosexual Lie to go the way of Tyrannosaurus Rex.


So Clarence Thomas cannot hear any case involving race discrimination against African Americans -- is that the logic here?

I guess the Prop8 backers are reaching for any straw they can find, since they couldn't come up with any arguments other than 'the Bible says so'.
(Walker did a pretty good job running the trial - he kept both sets of lawyers from going off on tangents.)

What garbage; based on this flawed reasoning, all straight judges would have to recuse themselves as well as they, too, would have a conflict of interest. Then we could have Coco the gorilla choose the winner, right? Prop 8 supporters are showing their true, venal, discriminatory colors. This has nothing to do with anything but homophobic idealogues willing to go to any length for their cause, including launching ad hominem attacks because they lost. Remember what was said during WWII ... when they came for "us" there was nobody left... speak out. Speak out against this unspeakable assault on the rule of law. And if this tactic succeeds, let's get ready for a Star Chamber inquisition of sexual and life preferences before every case. Just when you thought they couldn't stoop any lower.

Perhaps a judge who's an asexual agnostic albino hermaphrodite would make them happy?

I think if they want to void the decision made by the judge for being in a long term homosexual relationship then you would also have to void any future decision made by a judge who was in a long term heterosexual relationship as well.

Meh, I don't think they're illogical, not all of them. Surely a few are just lawyers doing their duty, taking their fees, and fishing for more time to earn them. Pugno's argument is illogical, his vague statement on what kind of homosexual judge could sit on the case is empty and meaningless, and he MUST be aware of it!

By that logic, strait judges would also have to excuse themselves from this legal mess because the ruling could impact them too.

Dave H. asks if we can assume that a straight judge would not be biased. Maybe, maybe not. However, unlike a straight judge, Vaughn Walker stands to personally benefit from his own ruling. Grounds for a mistrial, perhaps?

Are they saying a female judge shouldn't rule on womens' rights issues?
Hispanic judges on immigration issues?
Christian judges on issues that conflict with Bible teachings?
Gun owning judges on NRA issues?
Homeowing judges on property rights?
Voting judges on voters rights?

Let's just say anyone who didn't know before, during, and after the trial that Judge Walker was gay and in a relationship, had to be either living under a rock or illiterate. It was in all the papers.

Bigotry truly knows no bounds. These Prop 8 supporters are proving that they will decry any and every defeat they experience. If a gay judge can't be impartial, neither can a straight one! After all, this case is about sexuality! This is just another example of tyranny by majority, except for the fact that the majority no longer opposes marriage equality! (Can we just resolve this and move on already?)

So the best they can do is, "he's biased because he's gay." I want the Prop 8 side to divulge all of their sexual peccadillos, and divulge exactly what stones they've throne at those glass houses. I know they're biased, but I'm just trying to understand why.

HA HA HA HA!!! Really? This guys are shooting themselves...on their brain. Did not you know? Only very straight people can be objective, neutral and all those GOOD things. LOL...

Every judge has a bias: they may have conservative values, liberal values, be of a particular ethnic group, a particular sexual orientation, religion, outlook or philosophy on life, personality traits, socio-economic status, etc.

Can a Christian Judge be trusted to be unbiased hearing such a trial? After all he/she has a stake in the outcome?

There are times when judges should recuse themselves, for example if they own shares in a mining company and are asked to hear a case on that company, or maybe even a challenge on environmental laws affecting mining companies.

Because people wanting to deprive others of civil rights & equal protection under the law are of course totally not biased!

I know! Let's find a polysexual who likes everything and have THEM decide.

Read Walker's ruling - he takes the testimony and evidence presented in the trial, analyzes it, logically breaks it down, and he presents a very thorough and well-reasoned breakdown of it. He then goes on to support his ruling with the evidence. There's not a hint of bias there.

But then you get the usual conservative reaction to any ruling that doesn't go there way. The judge is biased. The judge is liberal. The judge is "legislating from the bench". Any ruling, based on facts, or law, or the Constitution, must be invalid if it doesn't go there way. Never, ever, is the case lost because the merits of their case stink or are just plain non-existent. No, its always because something unfair has transpired against them that isn't their fault. Not desperate, just pathetic.

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