Prop 8 Trial Bias: Another Wall's About To Tumble Down

Gay rights opponents will fight to reinstate California's same-sex marriage ban on Monday, but the new judge should deny the challenge

590 prop 8 REUTERS Danny Moloshok.jpg

They came to federal court last year to fight for California's same-sex marriage ban with virtually no compelling evidence. Their attorneys were hapless, even helpless, during the trial over the constitutionality of Proposition 8. And now that they have lost, now that Democrat David Boies and Republican Ted Olson have eaten their lunch, same-sex marriage foes want a do-over, because the trial judge is gay -- and therefore necessarily biased against them.

On Monday, this argument, the worst legal argument of the year, will be earnestly pitched to Chief U.S District Judge James Ware in a courtroom in San Francisco. Judge Ware, an appointee of George H. W. Bush, has taken over the trial portion of the Prop 8 case, or what's left of it anyway now that it's up on appeal, because the current lightning rod, U.S. District Judge Vaughn Walker, another appointee of George H.W. Bush, has since retired.

Gone but certainly not forgotten, Judge Walker struck down the state's ballot initiative last August. He declared that its provisions that prohibited same-sex marriage violated both the equal protection and due process clauses of the Constitution. The 9th Circuit held oral argument on the case several months ago but didn't reach a decision -- instead, asking the California Supreme Court to clarify a point of state law. While all this is in play, and because he is gay and ruled in favor of gay rights, Judge Walker is the target of a motion to vacate the judgment he rendered last August.

I've written about this unsightly wrinkle in the same-sex marriage battle before, and just recently too, so I won't go into detail here. The essence of the motion to undo Judge Walker's ruling comes quickly, on Page 2. "Given that Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case was commenced)," same-sex marriage opponents argue, "it is clear that his 'impartiality might reasonably [have been] questioned' from the outset" under the legal standard for the disqualification of a judge (my emphasis).

It's the direct leap from point A to point B that doesn't cut it for me, in law or logic. Yes, Judge Walker struck down Prop 8. And he ruled against its supporters on many occasions before, during and after the trial. This is what judges do. What they don't typically do is invite one party in a case to present more compelling evidence to help their cause. That's what Judge Walker did last year during the trial -- but he did it in favor of Prop 8's lawyers. "Please make a stronger case, counsel," doesn't sound like bias that warrants recuse to me. Does it sound like that to you?

What we are going to see then, when Judge Ware denies this motion, is the tumbling of yet another wall of prejudice in the life of the law. Judge Walker may well have gotten his law wrong. But the argument that a judge should himself be judged by his sexual orientation rather than by his work product -- that a gay judge can't sit in judgment of gay causes or cases because of some predetermined bias -- is the very sort of discrimination against which gays and lesbians (and other minority groups) have long fought. The argument, indeed, is a miniature version of the broader anti-gay argument that animates the same-sex marriage debate in California and elsewhere, isn't it? Being gay isn't just different, it's worse. 

Ironic, then, that the very people who today conspire to keep California's gay and lesbian couples from lawfully marrying -- say, by filing silly motions like this -- believe that they have been instead the victim of one judge's gay plot to strike down Prop 8. It shouldn't take Judge Ware very long at all to deny this challenge. And I hope he writes an eloquent denunciation of the idea behind it. He may even call it spurious -- though many reasonable folks would argue that it's even worse than that.

Image Credit: REUTERS/Danny Moloshok

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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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