Same-sex Judge Bias Claim Rejected

Chief Judge James Ware

California’s Prop. 8 ban on same-sex marriage remains unconstitutional for now. Judge James Ware rejected the argument that retired Judge Vaughn Walker should have disqualified himself from presiding because he is gay and in a long-term relationship.

The 19-page order comes one day after arguments in federal court in San Francisco  in which opponents of same-sex marriage argued that Walker should never have presided over the trial.

Walker declared Prop.8 unconstitutional last year and the case remains on appeal to the 9th U.S. Circuit Court of Appeals.

Opponents of gay marriage argued that Walker stood to gain from the ruling because it would have allowed him to marry his long-time partner, although the judge has never indicated whether he would take advantage of same-sex marriage.

“In a case that could affect the general public based on the circumstances or characteristics of various members of that public, he fact that a federal judge happens to share the same circumstances or characteristic and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge,” Ware wrote.

Ware, who is African-American, is touching on an issue that has arisen in civil rights cases when minority judges were asked to disqualify themselves from major civil rights actions.

Judge Walker was not required to recuse himself on the ground that he was in a long-term, same-sex relationship and, thus, could reap a speculative benefit from halting enforcement of Proposition 8, according to Ware.

He equated the potential social benefit to the personal desires of any judge to undergo an abortion or send a child to a particular university.

To create a test for judicial recusal on future subjective intent to take advantage of constitutional rights would create a test impossible to administer and one that would frustrate congressional efforts to protect judicial integrity, Ware reasoned.

 Case: Perry v. Schwarzenegger, C09-2292JW

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