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Federal appeals judge declines to recuse himself from Proposition 8 case

Judge Stephen Reinhardt [FJC profile] of the US Court of Appeals for the Ninth Circuit [official website] on Thursday denied a motion [texts, PDF] to recuse himself from the three-judge panel that will hear arguments on Proposition 8 [text, PDF], California's same-sex marriage ban. Proposition 8 supporters had sought Reinhardt's disqualification because of his wife's role as executive director of the American Civil Liberties Union (ACLU) [advocacy website] for Southern California, which has been involved in the Proposition 8 battle both publicly and in a private consulting capacity. The motion argued that 28 USC § 455 [text] requires Reinhardt to step down, even if he does not feel or act with a bias. Reinhardt denied the motion, writing, "I am certain that "a reasonable person with knowledge of all the facts would [not] conclude that [my] impartiality might reasonably be questioned," noting that he has recused himself in other cases "when doing so was warranted by the circumstances." The Proposition 8 supporters do not plan to appeal [AP report]. Arguments are scheduled for Monday.

A federal judge struck down Proposition 8 [JURIST report in August. In October, lawyers representing the city of San Francisco submitted a brief [text, PDF] arguing that Proposition 8 is irrational under California state law [JURIST report]. In September, officials in Imperial County, California, also submitted a brief [JURIST report] appealing the federal court's decision finding Proposition 8 unconstitutional. The appeal came just days after supporters of Proposition 8 filed a brief [JURIST report] seeking standing in order to file the appeal. Earlier in the month, a judge for the California Court of Appeal, 3rd Appellate District [official website] ruled [JURIST report] that neither Governor Arnold Schwarzenegger nor Attorney General Jerry Brown [official websites] is required to appeal the decision of the district court. In August, a three-judge panel for the Ninth Circuit issued a stay [JURIST report] of district court's decision, pending appeal. Schwarzenegger, Brown and others filed motions [JURIST report] opposing the stay request. Schwarzenegger and Brown were originally defendants in the lawsuit, and their refusal to oppose the stay left defendant-intervenors Protect Marriage [advocacy website] and other groups to defend the law. The remaining defendant-intervenors have indicated they will, if necessary, appeal the case to the US Supreme Court.

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