A judge for the US District Court for the Northern District of California [official website] on Tuesday rejected [opinion, PDF] a motion [text; JURIST report] by Proposition 8 [text; JURIST news archive] supporters to vacate Judge Vaughn Walker's holding that the same-sex marriage ban is unconstitutional [JURIST report]. Proposition 8 supporters had sought to have Walker recused for a conflict of interest after he revealed that he has been in a same-sex relationship for more than 10 years. In his ruling Tuesday, Chief District Judge James Ware denounced using sex, sexuality or race as grounds for recusal:
In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the 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 under Section 455(b)(4). In applying this conclusion to the present case, the Court finds that Judge Walker was not required to recuse himself under Section 455(b)(4) on the ground that he was engaged in a long-term same-sex relationship and, thus, could reap speculative benefit from an injunction halting enforcement of Proposition 8 in California. In particular, in a case involving laws restricting the right of various members of the public to marry, any personal interest that a judge gleans as a member of the public who might marry is too attenuated to warrant recusal. Requiring recusal because a court issued an injunction that could provide some speculative future benefit to the presiding judge solely on the basis of the fact that the judge belongs to the class against whom the unconstitutional law was directed would lead to a Section 455(b)(4) standard that required recusal of minority judges in most, if not all, civil rights cases. Congress could not have intended such an unworkable recusal statute.Also Tuesday, Ware set an August 29 hearing [order, PDF] to determine whether video of the Proposition 8 trial can be released for public broadcast.
The fate of Proposition 8 is still lingering in appeals courts. In March, the US Court of Appeals for the Ninth Circuit denied a motion [JURIST report] filed by California Attorney General Kamala Harris [official website] to lift the stay order [JURIST report] prohibiting gay couples from marrying while the appeal is pending. In February, the Supreme Court of California [official website] announced that it would decide a critical procedural issue [JURIST report] to determine if the pending federal appeal can continue. When Walker struck down Proposition 8 last year, then-governor Arnold Schwarzenegger and former attorney general and current Governor Jerry Brown [official website], who were originally defendants in the lawsuit, refused to continue defending the measure on appeal [JURIST report], leaving defendant-intervenors Project Marriage [advocacy website] and other groups to defend the law. It is unclear whether they have standing to do so.