Updated: So What Was Judge Vaughn Walker's Trial Like, Anyway?

A look back at last August's Perry v. Schwarzenegger ruling on California's same-sex marriage ballot initiative

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Updated at 5:15p ET Tuesday: Judge Ware indeed denied the recusal motion. Here is the link to his 21-page order.

While we are waiting for Chief U.S. District Judge James Ware to issue his ruling on the odious recusal motion filed in the Proposition 8 case, I thought it might worthwhile to go back to last August's substantive ruling on California's same-sex marriage ballot initiative. And I rushed because Judge Ware said in court Monday that he hoped to issue his ruling within 24 hours of the end of the hearing on whether his predecessor, Chief U.S. District Judge Vaughn Walker, should have recused himself from the case because he is gay.

Twenty-four hours! Like the blink of an eye in the justice system. And further proof of how pitch-poor the recusal motion is. So come with me now, and please hurry, to the text of Judge Walker's ruling in Perry v. Schwarzenegger, issued on August 4, 2010, after the long bench trial he held earlier in the year. Here is the 138-page opinion in its entirety. If you haven't already done so, you should read it. But right now, I am focused upon page 11. It reads:

At oral argument on proponents' motion for summary judgment, the court posed to proponents' counsel the assumption that "the state's interest in marriage is procreative" and inquired how permitting same-sex marriage impairs or adversely affects that interest. Doc #228 at 21. Counsel replied that the inquiry was "not the legally relevant question," id, but when pressed for an answer, counsel replied: "Your honor, my answer is: I don't know. I don't know." Id at 23. Despite this response, proponents in their trial brief promised to "demonstrate that redefining marriage to encompass same-sex relationships" would effect some twenty-three specific harmful consequences. Doc #295 at 13-14. At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn's testimony is addressed at length hereafter; suffice it to say that he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate. During closing arguments, proponents again focused on the contention that "responsible procreation is really at the heart of society's interest in regulating marriage." Tr 3038:7-8. When asked to identify the evidence at trial that supported this contention, proponents' counsel replied, "you don't have to have evidence of this point." Tr 3037:25-3040:4.

Now come with me to page 23 of Judge Walker's opinion. He wrote:

Political scientist Gary Segura provided many examples of ways in which private discrimination against gays and lesbians is manifested in laws and policies. Segura testified that negative stereotypes about gays and lesbians inhibit political compromise with other groups: "It's very difficult to engage in the give-and-take of the legislative process when I think you are an inherently bad person. That's just not the basis for compromise and negotiation in the political process." Tr 1561:6-9. Segura identified religion as the chief obstacle to gay and lesbian political advances. Political scientist Kenneth Miller disagreed with Segura's conclusion that gays and lesbians lack political power, Tr 2482:4-8, pointing to some successes on the state and national level and increased public support for gays and lesbians, but agreed that popular initiatives can easily tap into a strain of antiminority sentiment and that at least some voters supported Proposition 8 because of anti-gay sentiment.

Sound familiar? The gravamen of the argument made against Judge Walker, now that he is retired and off the bench after 22 years of service, is that he is "inherently" unable to preside over a trial involving same-sex marriage. It's no wonder Judge Ware spent so much time Monday questioning the lawyer who brought the motion. Now let's dip quickly to page 38. And here Judge Walker is noting the paucity of the evidence supporting Prop 8. Keep in mind that side is called the "Proponents" (as in, the Proponents of Prop 8). Judge Walker wrote:

Proponents elected not to call the majority of their designated witnesses to testify at trial and called not a single official proponent of Proposition 8 to explain the discrepancies between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court. Proponents informed the court on the first day of trial, January 11, 2010, that they were withdrawing [here the judge lists four witnesses]. Doc #398 at 3. Proponents' counsel stated in court on Friday, January 15, 2010, that their witnesses United States District Court because they "were extremely concerned about their personal safety, and did not want to appear with any recording of any sort, whatsoever." Tr 1094:21-23. The timeline shows, however, that proponents failed to make any effort to call their witnesses after the potential for public broadcast in the case had been eliminated.

This is why the Prop 8 team was routed at trial. It wasn't Judge Walker's evil gay plot. It wasn't his "inherently bad" subconscious. It was because the "proponents" didn't back up their "proposition" with credible evidence. It's no more complicated than that. Much already has been made of the Blankenhorn's testimony. I'd like to focus instead on the other guy, Kenneth P. Miller. Of Miller, Judge Walker wrote (on pages 53-56):

Miller stated that he did not know at the time of his deposition the status of anti discrimination provisions to protect gays and lesbians at the state and local level, Tr 2506:3-2507:1, could only identify Don't Ask, Don't Tell and the federal Defense of Marriage Act as examples of official discrimination against gays and lesbians, Tr 2524:4-2525:2, and that he has read no or few books or articles by George Chauncey, Miriam Smith, Shane Phelan, Ellen Riggle, Barry Tadlock, William Eskridge, Mark Blasius, Urvashi Vaid, Andrew Sullivan and John D'Emilio, Tr 2518:15-2522:25.

Miller admitted he had not investigated the scope of private employment discrimination against gays and lesbians and had no reason to dispute the data on discrimination presented in PX0604 (The Employment Non-Discrimination Act of 2009, Hearings on HR 3017 before the House Committee on Education and Labor, 111 Cong, 1st Sess (Sept 23, 2009) (testimony of R Bradley Sears, Executive Director of the Williams Institute)). Tr 2529:15-2530:24.  Miller did not know whether gays and lesbians have more or less political power than African Americans, either in California or nationally, because he had not researched the question. Tr 2535:9-2539:13...

... The credibility of Miller's opinions relating to gay and lesbian political power is undermined by his admissions that he: (1) has not focused on lesbian and gay issues in his research or study; (2) has not read many of the sources that would be relevant to forming an opinion regarding the political power of gays and lesbians; (3) has no basis to compare the political power of gays and lesbians to the power of other groups, including African-Americans and women; and (4) could not confirm that he personally identified the vast majority of the sources that he cited in his expert report, see PX0794A. Furthermore, Miller undermined the credibility of his opinions by conceding that gays and lesbians currently face discrimination and that current discrimination is relevant to a group's political power.

Miller's credibility was further undermined because the opinions he offered at trial were inconsistent with the opinions he expressed before he was retained as an expert. Specifically, Miller previously wrote that gays and lesbians, like other minorities, are vulnerable and powerless in the initiative process, see PX1869 (Kenneth Miller, Constraining Populism: The Real Challenge of Initiative Reform, 41 Santa Clara L Rev 1037 (2001)), contradicting his trial testimony that gays and lesbians are not politically vulnerable with respect to the initiative process. Miller admitted that at least some voters supported Proposition 8 based on anti-gay sentiment. Tr 2606:11-2608:18.

These were the guys that were supposed to stare down Ted Olson and David Boies, the blue-label lawyers for the anti-Prop 8 forces. And these are the guys today who are saying they got an unfair trial because the judge is gay. I am sure that Judge Ware read Judge Walker's ruling last August. And I am sure he has read it again since. This record doesn't show judicial bias. It shows arguments and advocates bereft of evidence or logic. There's no place for that in federal court, no matter what the case or cause. 

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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