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Calif. Officials: Attack on Gay Judge’s Prop 8 Verdict ’Meritless’

by Kilian Melloy
Saturday May 14, 2011

Officials with the city of San Francisco, together with state Attorney General Kamala Harris, filed court papers calling attacks on former federal judge Vaughn Walker's ruling against Proposition 8 last year "meritless" and motivated by anti-gay animus, the Silicon Valley Mercury News reported on May 12.

Lawyers defending the anti-gay measure, which was narrowly approved in 2008 by California voters, submitted a motion last month to dismiss the verdict after Walker public came out as gay. They cited Walker's long-term relationship as the reason for the motion, and denied acting out of anti-gay bias.

"We are not suggesting that a gay or lesbian judge could not sit on this case," the motion claimed. "Simply stated, under governing California law, Chief Judge Walker currently cannot marry his partner, but his decision in this case ... would give him a right to do so."

"Experts in judicial ethics said Tuesday that carefully parsed line of reasoning is unlikely to prevail," the Associated Press reported in an April 27 article. "They pointed out that while courts have not yet had to wrestle with sexual orientation as grounds for judicial recusal, judges typically have rejected efforts to remove jurists based on personal characteristics such as race, gender, religion or even the contents of their investment portfolios."

"I don't think this judge had any more duty to disclose his sexual orientation than a Christian or Jewish or Muslim judge has a duty to discuss their religion or a heterosexual judge has his duty to discuss their sexual orientation," said Raymond McKoski, himself a retired state judge.

In papers filed May 11, Harris tackled the argument employed by backers of the 2008 anti-gay measure. Supporters of the ballot initiative that stripped gay and lesbian families of their then-existing rights to marry have claimed that Walker should have recused himself from hearing the case based on the fact that he is gay and has a long-term same-sex partner--a fact that Walker had not publicly disclosed until after he left the bench.

Skeptics say that judges are not required to recuse themselves for such reasons, and have pointed out that if a gay judge were to be expected to recuse himself in cases regarding marriage equality on an assumption of bias, heterosexual judges would also be required to recuse themselves.

Harris used much the same reasoning in the papers she filed.

"We do not require our judges to be automatons set apart from the rest of society," Harris noted. "Instead, we recognize that, like the rest of humanity, no judge is free of personal characteristics, beliefs and affiliations, and we presume they will put those aside and apply the law."

Walker himself has said that his sexuality had no bearing whatever on the verdict.

"If you thought a judge's sexuality, ethnicity, national origin (or) gender would prevent the judge from handling a case, that's a very slippery slope," Walker said last April 6. "I don't think it's relevant."

Backers of the suit against Prop 8 say that Walker's verdict is based solely on the facts presented in his court during last year's trial, meaning that the Proposition 8 proponents had not made a case for their side.

"They say the evidence was overwhelmingly in their favor because lawyers for the voter-approved measure's sponsors decided to call only two witnesses compared with the plaintiffs' 17, and they failed to provide credible studies or convincing corroboration for their claim that marriage should be limited to a man and woman to promote responsible childbearing," an Oct. 20, 2010, AP story noted.

As state attorney general, Harris has refused to defend Proposition 8 during the appeals process. Gov. Jerry Brown, who was state AG before he was elected to replace Gov. Arnold Schwarzenegger, had similarly refused to defend the law, noted the Mercury News.

Harris has declined to defend the state law, as did her predecessor, Jerry Brown, now governor.

"San Francisco City Attorney Dennis Herrera also argued in court papers that there is no reason to tamper with Walker's August 2010 decision, rejecting the... allegation [be Prop 8 lawyers] that Walker's same-sex relationship rendered him biased," the article reported. "Herrera said courts have consistently rejected claims that judges could not be fair based on factors such as race, religion and gender, and that sexual orientation is no different."

City officials charged that the measure's backers had "impugned" the judicial integrity of the former judge "based, fundamentally, on his sexual orientation."

"Chief Judge James Ware, who is now handling the case, is scheduled to hold a hearing on the Walker issue in June," the article said. "The California Supreme Court is separately considering whether Proposition 8 sponsors even have a legal right to defend the law now that the governor and attorney general have refused to do so."

Similarly, the Obama Administration announced earlier this year that the Justice Department would no longer be defending another anti-gay law targeting families, the 1996 "Defense of Marriage" Act (DOMA).

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor. He also reviews theater for WBUR. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.


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