June 13, 2011 Print
Vaughn Walker

Back in Court: Judge Should Have Stepped Down

by Catherine Snow

The ongoing battle over marriage received another hearing today in a San Francisco federal court room. This time, the focus was on the propriety of now-retired District Judge Vaughn R. Walker’s decision to strike down Proposition 8, a 2008 voter-approved amendment defining marriage as between one man and one woman.

The 9th U.S. Circuit Court of Appeals stopped Walker’s decision from going into effect while the case continues.

Shortly after retiring in February, Walker admitted in an interview to being in a decade-long same-sex relationship — a rumor that had surfaced during the trial, and a fact that was not disclosed by Walker prior to accepting the case.

Attorneys for ProtectMarriage.com immediately filed a motion to vacate Walker’s decision. Simply put, they argued that Walker not only violated a federal law regarding judicial ethics, but violated the public’s trust and called into question his impartiality:

“Fundamental to the integrity of the judicial function and, therefore, to public confidence in the courts, is the judiciary’s strict fidelity to the ancient maxim that ‘no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.’ ”

U.S. District Chief Judge James Ware, who replaced Vaughn, said at today’s hearing that he will rule on the recusal issue within 25 hours.

Ware did, however, did deny ProtectMarriage.com’s other outstanding request, which was to retrieve video copies of the trial still in marriage opponents’ possession. Concerns remain that witnesses for the Prop 8 side could be exposed to harassment by gay activists, if they were made public.

After his retirement, Walker showed excerpts of the trial testimony at a legal conference which was televised by C-SPAN, prompting the motion by ProtectMarriage.com. Walker returned his copy prior to today’s hearing, leaving only the parties to the Prop 8 suit with copies in their possession.

Bruce Hausknecht, judicial analyst for CitizenLink, says ProtectMarriage.com is strategically fashioning a legal record, should the case make it to the the U.S. Supreme Court.

“The Supreme Court has already reversed Judge Walker’s flagrant attempt to televise the 2010 trial in violation of his own court rules,” he said. “Whether or not justice is done as a result of today’s hearing, this issue must be argued now, so that it can eventually be reviewed by a court that is outside the liberal taint of the 9th Circuit.”

Media Matters and liberal and gay activists mistakenly claim that ProtectMarriage.com wants Walker’s ruling to be vacated merely because he identified himself as gay. Ed Whelan, president of the Ethics and Public Policy Center — and perhaps the Prop 8 trial’s keenest outside observer — points out that their distractions and distortions cloud the acute nature of Walker’s lapse in ethics — that he chose to rule on his personal rights. “It’s bad enough that so many of Walker’s defenders don’t confront the actual argument made by Prop 8 proponents. It’s even worse that they resort to invective as a substitute for their lack of argument,” Whelan opined.

“For example, Adam Serwer calls the motion to vacate ‘slimy’ and falsely claims that it rests ‘on the flimsy assumption that gays and lesbians are different from heterosexuals in a manner that justifies denying them their fundamental rights.’ (He also has no support for his claim that the motion is ‘built on an unstated. but core conservative view of the courts — that judicial ‘impartiality’ is best defined as viewing the law through the cultural prism of a heterosexual, conservative white Christian judge.’ But why bother to argue when simply alleging is so much easier?)”

In short, had Walker recused himself — or ruled in favor of Prop 8 — he would have destroyed his prospect of being in a same-sex marriage, if he so desired.

Even legal ethicist Jack Marshall, who supports same-sex marriage, reluctantly admitted: “A straightforward application of the judicial ethics rules compels the conclusion that Walker should have recused himself from taking part in the [Perry v. Schwarzenegger] case” (emphasis added).

“Don’t forget that Olson and Boies chose the 9th Circuit for a reason,” Hausknecht said. “Defending marriage in San Francisco is a lot like defending the Christians in early Rome. However, the genius of our three-tier federal court system is that this case will ultimately get to the Supreme Court, which doesn’t take kindly to the adventures in judicial activism commonly practiced in the 9th Circuit.”

Read ProtectMarriage’s Motion to Vacate Judge Walker’s Prop 8 Decision.