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