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Prop 8 Judge Vaughn Walker: Courts’ Change on Same-Sex Marriage Was ‘Utterly Unimaginable’

| June 12, 2013
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Former federal judge Vaughn R. Walker, who wrote the 2010 decision invalidating Proposition 8

Ever since he struck down Proposition 8 in 2010, former federal judge Vaughn Walker has maintained a certain distance from the case. That’s probably wise, given that the Supreme Court has yet to make a final determination on his ruling.

So when Walker called and invited me to hear him speak about LGBT legal issues before a gathering of 25 or so criminal defense attorneys Monday night, how could I resist?

At the meeting, Walker outlined the history of homosexuality and the law. Born in 1944, Walker said the breadth of change in how the courts perceive gay rights is something that “I could not have imagined in my wildest dreams.” For emphasis, he added that the shift has been “utterly unimaginable.”

Recalling that day in 2009 when he first noticed a complaint in his “in box” titled Perry v. Schwarzenegger, it was, he said, “my oh-shit moment.” He realized the importance of the case challenging Prop. 8, but said he never thought it would attract the media attention it has. The Prop. 8 case is, he said, “the gift that keeps on giving.”

To Walker, the most fascinating moment in the March 26 oral arguments at the Supreme Court was this exchange between Justice Sonia Sotomayor and Prop. 8 attorney Charles Cooper.

JUSTICE SOTOMAYOR: Outside of the – outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision … that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision?

MR. COOPER: Your Honor, I cannot. I do not have any — anything to offer you in that regard.

It was, said Walker, “a remarkable exchange” highlighting the extent to which equal treatment for gays and lesbians has become embedded in our culture.

And why did Walker choose to hold a trial with witnesses, rather than just take briefs and make a ruling?

Walker said the breadth of change in how the courts perceive LGBT rights is something, “I could not have imagined in my wildest dreams.”

“Trials have a cleansing effect,” he said. “It’s not always a Perry Mason moment, but there’s nothing like putting someone on the witness stand” and making them answer questions.

After the meeting, Walker and I strolled over to the Hyatt Regency, where we had a wide-ranging discussion about the Prop. 8 trial and the Supreme Court’s pending decision. That was off the record, though I can say he drinks a Hendrick’s gin martini up with two olives. And also: the judge says that unlike those of us in the media who are up early on SCOTUS decision days to catch first word of the ruling, he’s a lot less obsessed with the case’s final outcome.

But at his talk with attorneys, Walker paraphrased former civil rights leader John Lewis, saying, “The leaders are scrambling to keep up with the people. There goes America. The laws some day will catch up.”

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  • Curious

    Walker should have recused himself.
    His whole sham trial was a travesty.

    • Aaron Springs

      Just how much of the trial did you watch? Did you watch any of it? Or the transcripts … did you read them?

      • Curious

        Yes, and if you had, you would know that Walker made a series of ridiculous rulings, many of which were overturned by the California Supreme Court. He tried to rewrite certain rules to suit his bias.
        He is a disgrace to the judiciary.

        • Aaron Springs

          Utter nonsense. A state supreme court has no authority to review, much less overturn a federal district court judge.

          • Curious

            Should have read “by Ninth Circuit.” The point remains the same and your response remains substantively meritless.

          • Eric Westby

            Please. No one who understands even the basics of federalism would have made such a risible comment.

            Coward.

          • hyhybt

            I followed the case very closely, and do not remember any examples of clear bias. Would you mind giving examples, please?

          • Curious

            Walker decided to have the parties proceed to factual discovery in a
            case that, to the extent that it involved any facts at all, involved
            legislative rather than adjudicative facts–facts that are the
            proper stuff of documentary submissions, not of live trial testimony. That
            decision surprised even plaintiffs’ lawyers: When Walker declared to
            plaintiffs’ counsel at the case-management conference, “There certainly is some
            discovery that is going to be necessary here, isn’t there?,” plaintiffs’ counsel
            offered this appropriately puzzled reply, “Well, I’m not sure. . . . Is there
            discovery necessary? If there is, what is it? What form would it take?”
            Proceedings Tr. 22:25-23:5, ECF. No. 78.

          • hyhybt

            As with the camera thing, that a full trial was held was unusual for this sort of case. But nobody anywhere ever has shown that it was inappropriate, much less that it proves bias towards either side. Indeed, it gave the *defense* as well as the plaintiffs ample opportunity to support their position, an example of what I mentioned earlier.
            So: do you have anything to show BIAS (not mere oddities, but actions which can be demonstrated to be designed to favor one side over the other) in the handling of this case? Going back to a previous example and showing why it was bias after all would count, if you can do that. But remember: mere outcome is not sufficient.

          • Curious

            Walker decided to proceed to trial rather than to resolve the case
            on summary judgment, as nearly all other courts have done in similar cases. Even plaintiffs’ counsel, Mr. Olson, acknowledged in his closing argument post-trial that “I thought we didn’t need the trial” (even as he praised the trial, evidently for its public-relations impact, as “an enormously enriching and important undertaking”). Trial Tr. 2986:16-18, ECF No. 693; see also
            id. at 2983:23-24, (Mr. Olson’s statement, “I believe that this case
            could be decided on whatever Mr. Cooper means by legislative facts . . . .”).

          • hyhybt

            You said that already, and neither there nor here showed how that is supposedly an example of bias.

          • Curious

            Walker suffered from the deeply confused belief that the live trial testimony on matters of legislative fact had an exclusive, or highly privileged, claim on his consideration. That misunderstanding is most sharply captured in
            his comment, “I don’t mean to be flip, but
            Blackstone didn’t testify. Kingsley Davis didn’t testify. What testimony in this case supports the proposition [that society has a procreative interest in marriage]?” Trial Tr. 3039:16-18, ECF No. 693(emphasis added). Walker’s question–”What testimony in this case supports the proposition?”–wasn’t just flip. It was obtuse. Even if one indulges the mistaken
            assumption that there was any need for a trial in the case, live witness testimony is merely one form of trial evidence. Exhibits submitted in evidence at trial are another form. And a judge is of course free to, and expected to, take judicial notice of various factual matters.

          • hyhybt

            I had a different reply typed here, but then re-read your post and realized it didn’t even get far enough to warrant that. Blackstone has been dead for over two centuries. It’s not even a matter of the difference between testimony and an affidavit; he has no relevance to the case whatsoever. Testifying about something he said is simply a way of attempting to raise his purported opinion to the level of fact, and moreover on a subject he surely knew far less about than any random present-day American picked off the street. Why would any sound judge allow that?

          • Curious

            Because that’s the way law and evidence work.

          • hyhybt

            …which is too vague to be a useful answer, even were it true. Care to be specific and explain what you mean in enough detail to be useful in understanding your point?

          • Curious

            ‘Evidence’ is anything ‘offered to prove the existence or nonexistence of a fact’–including ‘testimony, writings, material objects, or other things presented to the senses … ‘ [Ca Evid Section 140]

          • hyhybt

            All right so far, but you’re not *quite* there yet. Why should selected portions of the opinion of a guy who’s long dead and had nothing to do with this in the first place NOT be treated any differently than what, for convenience’s sake, I will call real testimony?
            What is the context of the quote you cite, anyway? I vaguely recognize it, but don’t have the transcript at hand nor even know which day that would have been. Since you’re quoting it, either you DO or else you’re taking what someone else took out of context and just assuming it is what you’re presenting it as.

          • Curious

            Walker’s resort to procedural shenanigans and outright illegality in support of his fervent desire to broadcast the trial, in utter disregard of (if not affirmatively welcoming) the harassment and abuse that pro-Prop 8 witnesses would reasonably anticipate. Walker’s decision was ultimately blocked by an extraordinary (and fully warranted) stay order by the Supreme Court in an opinion that was plainly a stinging rebuke of Walker’s lack of impartiality.

            Walker’s failure to decide the case, one way or the other (as other courts have done in similar cases), as a matter of law and his concocting of supposed factual issues to be decided at trial.

            The incredibly intrusive discovery, grossly underprotective of First Amendment associational rights, that Walker authorized into the internal communications of the Prop 8 sponsors—a ruling overturned, in part, by an extraordinary writ of mandamus issued by a Ninth Circuit panel consisting entirely of Clinton
            appointees.

            Walker’s insane and unworkable inquiry into the subjective motivations of the more than seven million Californians who
            voted in support of Prop 8.

            Walker’s permitting a parade of anti-Prop 8 witnesses at trial who gave lengthy testimony that had no conceivable bearing on any factual or legal issues in dispute but who provided useful theater for the anti-Prop 8 cause.

          • hyhybt

            “the harassment and abuse that pro-Prop 8 witnesses would reasonably anticipate” is a lie on its face. That they *claimed* to fear that is true; that they had any even remotely valid basis for doing so ON THE BASIS OF THE TRIAL’S BEING BROADCAST that they would not likewise have otherwise is transparently false, too obviously so for anyone thinking anywhere near rationally not to know beyond all doubt.
            Given that you regurgitated that claim despite this, the rest of the post is difficult to take seriously. Nonetheless, looking through it anyway so as to give maximum benefit of the doubt, the only part that is near enough to objective, and which I agree is a potential valid point of concern, is the extent of the discovery.
            Inquiry into motives is relevant when one particular motive, animus, is one which is already established to be invalid grounds for making law. Call it insane and unworkable all you like, but the attempt is necessary and to the point.
            As for the number of witnesses and the length of their testimony, the fault for that lays squarely and SOLELY on the defendants, who likewise were offered the opportunity to present multiple witnesses and to let them testify for days on end. They either chose not to or could not find any willing who wouldn’t make their side look even worse than it already did. If you don’t bring witnesses of your own, it’s hardly fair to blame the judge for listening to those from the other side.

          • Curious

            I understand that you, as a non-lawyer, cannot grasp the implications of his actions, so I will leave it there.

          • hyhybt

            In other words, you HAVE no explanation. Otherwise you’d offer it instead of this copout.
            Being a lawyer has nothing to do with it; it’s plainly obvious that there is no rational reason they would be afraid just because people could watch their testimony.

          • Curious

            You are not aware of how people who supported Prop 8 were attacked, harassed and intimidated? Not possible.

          • hyhybt

            They grossly exaggerated the few examples that were true at all, but yes, I’m aware.
            Likewise, you are presumably aware that people on the other side have also sometimes been attacked in comparable ways and worse.
            Two things: first, since being known to take *either* side comes with a very slight risk, even were it true that the risk came specifically from televising the trial would not at all be an example of BIAS towards or against either side. Second, whether the trial was on TV or not DOES NOT AFFECT whether who said what is known to anybody interested in finding out. Their identities are and were readily available, they had already expressed the same stuff and more on the internet of their own volition, and transcripts were published every day anyway.
            So, TAKING ALL THAT INTO ACCOUNT, how was it reasonable for them to fear specifically the *broadcast* of their testimony, as opposed to giving the testimony at all?

    • Free At Last

      Denial much?

    • Ageinla

      @Curios – So if a Judge is black and the people in the trial are black they should recuse themselves as well???

      • Curious

        28 U.S.C. § 455. Disqualification of justice, judge or magistrate judge
        (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

        Section 455(a) requires disqualification for the appearance of
        partiality (i.e., when a judge’s “impartiality might reasonably be questioned”)

        A judge contemplating disqualification under § 455(a), then, should not
        ask whether he or she believes he or she is capable of impartially presiding over the case. Rather, the question is whether a judge’s impartiality might be questioned from the perspective of a reasonable person, and every circuit has adopted some version of the “reasonable person” standard to answer this question.

        This is especially relevant in a bench trial where the judge’s role is even more pivotal than in a jury trial. In Alexander v. Primerica Holdings, Inc., 10 F.3d 155 (3d Cir. 1993) the court of
        appeals said: “We cannot overlook the fact that this is a non-jury case, and that [the judge] will be deciding each and every substantive issue at trial . . . . When the judge is the actual trier of fact, the need to preserve the appearance of impartiality is especially pronounced.”

        This was a bench trial and Walker waited until after the trial to disclose that he is gay and involved in a long term relationship with another man.

        Obviously, Walker’s “impartiality might reasonably have been questioned” had he revealed this before trial.

        • Eric Westby

          Anti-gay bigots’ entire case rests on the fact that they claim gay marriage harms straight couples, and by extension society at large. How then would a heterosexual judge be capable of being truly unbiased either? Surely the harm caused by *permitting* gay marriage would affect him or her personally, just as the harm caused by *denying* gay marriage would affect Judge Walker.

          What’s that you say? A heterosexual judge wouldn’t be affected? But … I thought the whole point of the anti-gay-marriage argument was that gay marriage causes harm to straight people? If it in fact doesn’t … wouldn’t that invalidate their entire argument?

          QED.

          • Curious

            Strawman.

          • hyhybt

            How so?

          • Curious

            So, Obama, the Clintons, Kerry, etc. and a large portion of the democrat party are all “anti-gay bigots”?

          • Eric Westby

            All of the above are currently in favor of gay marriage. Times change — for most of us, anyway. ;)

            Coward.

          • to_tell_the_truth

            Not any more.
            DO catch up. The 21st Century awaits you. (or, more accurate, is passing you by).

          • Curious

            Fifty-three percent of respondents favor allowing gay and lesbian couples to marry, which is up 2 points since the NBC/WSJ survey last asked this question in December, though that increase is within the poll’s margin of error.

            Forty-two percent oppose gay marriage – also up 2 points since late last year.

            By party, 73 percent of Democrats and 54 percent of independents back gay marriage, while 66 percent of Republicans oppose it.
            At the same time that general support for gay marriage has increased – albeit within the margin of error – so has opposition to abortion.

            According to the survey, a combined 52 percent say that abortion should be illegal either with exceptions or without them, versus a combined 45 percent who say it should be legal either “always” or “most of the time.”
            http://firstread.nbcnews.com/_news/2013/04/11/17708688-nbcwsj-poll-53-percent-support-gay-marriage?lite

          • to_tell_the_truth

            Nothing you’ve come back with supports your desire to see Walker ‘recused’.
            But the pertinent stats you supplied support the fact that the majority of Americans do support equal marriage, so … thanks.

          • ldfrmc

            “Unsurprisingly, the only responses to [your] reasoned comments are name calling.”

          • hyhybt

            They’d have a *slightly* better argument had the judge married while he had the chance.

        • ldfrmc

          Justice Sotomayer and Kagen are not married. Should the two of them, alone, be the only Supreme Court justices to have heard the DOMA and Prop 8 cases?

          Is a married person impartial? Is a single person impartial? Is a married, religious person impartial?

          “Curious” you have only one preoccupation for disqualification.
          Your motivation is “obvious.”

        • hyhybt

          Key word there: “reasonably.” Besides, on the assumption that being gay made him unable to handle the case in an unbiased manner, that would logically imply that being straight would carry the opposite bias. You’d be OK with that?

    • scottrose

      You are a filthy gay-bashing bigot. Whole nations have long since treated their gay citizens equally.

      • Curious

        Existing marriage laws do not treat gays “unequally.”

        • scottrose

          To which jurisdictions are you referring, in your bigot fatuousness? In Canada, Holland, Spain, France, Argentina and many other countries, it is true that marriage laws do not treat gays unequally. In New England and New York and a number of other states, gays have state-level equality but not federal equality. Marriage equality means that two people of the same sexual orientation may marry each other. You are a verkakte bigot; a loser, on the wrong side of history.

        • to_tell_the_truth

          Yes they do.
          Bearing false witness is a ‘seeyun’.

        • hyhybt

          That statement relies on defining “equal” in such a superficial way that it is deliberately deceitful. GENUINE equality treats people equally in a deeper fashion. A gay man plus a woman, or a lesbian with a man, is not similarly situated to a straight, opposite-sex couple. Two gay men or two lesbians are.

          It’s like saying that a law which requires all worship services to be held on Saturday isn’t discriminatory because Jews and Seventh Day Adventists must abide by it just like Catholics, Baptists, and Muslims.

    • Eric Westby

      A revolting sentiment — exactly the same sneering language that was used to claim that no civil rights case should be heard by an African-American judge, and no sexual discrimination case should be heard by a woman. The belief that only a straight, white male can ever be impartial is a pernicious lie.

      Perhaps it’s unsurprising the only people who hold such views in 2013 are anonymous cowards like “Curious.”

      • Curious

        SSM and interracial marriage have no relationship.
        Strangely, up until very recently, Obama, a self-proclaimed Constitutional Law expert, and an African American, opposed SSM.

        • Eric Westby

          Who brought up interracial marriage? And what do the President’s views have to do with anything?

          We’re referring to your fatuous argument that Judge Walker was obviously biased and should have been recused.

          Coward.

          • Curious

            “Who brought up interracial marriage?”

            “A revolting sentiment — exactly the same sneering language that was used to claim that no civil rights case should be heard by an African-American judge”

          • Eric Westby

            As my language makes clear, I was referring more broadly to all civil rights cases. Fifty years ago, there were those who believed that no African-American judge (few though there were at the time) should hear a civil rights case, because they would obviously show bias. Thurgood Marshall would have been required to recuse himself from any civil rights case before the Supreme Court.

            The judiciary quite rightly rejected that argument, since the clear effect would be to deny members of a minority group any say in how the law applies to them. Members of a minority group aren’t automatically biased just by virtue of their being in the group.

            This was asked and answered fifty years ago.

          • Curious

            Why don’t you look at the statute which I provided which sets out the standard. Address that directly, not your musings.

          • Curious

            A March 2013 Pew Center study — which compiled results from four surveys conducted over more than a year — found 40 percent of African-Americans support gay marriage, with 48 percent opposing.

            http://news.yahoo.com/african-americans-last-democratic-holdouts-gay-marriage-114604870.html

          • Eric Westby

            Who claimed otherwise? What do African-American attitudes toward gay marriage have to do with Judge Walker’s fitness to hear the case? Are these intentional red herrings on your part?

          • hyhybt

            …which, while interesting in its own way, doesn’t even address whether black judges should be recused from race-related civil rights cases solely on the basis of their race, which was the content of Eric’s post. Nor even does it attempt to claim race and orientation don’t parallel each other or explain why they wouldn’t.
            It is customary, when making a post as a “reply,” that it logically relate as such to its parent.

          • Curious

            No one has argued that Walker should have recused himself based solely on his sexual orientation, so the argument has an invalid predicate.

          • hyhybt

            At multiple points in this thread, various people have said that Walker should have recused himself BECAUSE HE IS GAY. How is that not basing it on his orientation?

        • baronsabato

          I think you need to work on your reading comprehension skills a tad bit…

        • https://www.facebook.com/jokie.x.wilson?ref=tn_tnmn Jokie X Wislon

          Not strange. Personal opinions and official political positions are two different things.

        • jomay

          Have no relationship… because you say so?

    • Mark Gerardy

      If you feel that way, that LGBT people should be excluded from matters pertaining to same gender relationships – then certainly you would also agree with deputizing all LGBT people as judges and magistrates for all divorce and family law courts that pertain to heterosexuals, provided that when a legal case is decided regarding heterosexuals, that they cannot be impartial either.

      • hyhybt

        Indeed. A judge who has gone through a nasty divorce, or more than one, is still considered able to set that aside and hear divorce cases in a fair manner.

    • https://www.facebook.com/jokie.x.wilson?ref=tn_tnmn Jokie X Wislon

      It doesn’t work that way. The arguments are solid and you aren’t smarter than the judges who have presided over this case.

    • Mikey Mistersunsetboulevard

      You have a right to practice your religion in this country, you do NOT have a right to practice it on others. Your religion, essentially a man made belief system, is completely irrelevant to the law of the land and governing policy. Gays exist in society…..time for you to build that bridge already, and get over it. Equality has won here.

      • Curious

        SCOTUS has already ruled that state laws restricting marriage to one man and one woman do not pose a federal question and do not implicate equal protection.

        • ldfrmc

          Courts rule, and revisit, and rule again. So do people in polling booths.

          Time moves on. Join us. Go from “Curious” to grown up.

        • hyhybt

          Even were gay-related issues *not* an area which in general has changed a lot since 1971, claiming what was essentially the equivalent of today’s court simply declining to take a case at all, and that that long ago, as relevant precedent is not exactly solid ground to build upon.

          • Curious

            So Roe v. Wade is not precedent based on your “test”? Interesting.

          • hyhybt

            Obviously, that is not a parallel. Merely occurring in the same time period is not enough, as that is only one of three characteristics I mentioned.

        • Aaron Springs

          >> SCOTUS has already ruled that state laws restricting marriage to one man and one woman do not pose a federal question and do not implicate equal protection. <<

          Baker v. Nelson? That was back in 1972. The case was dismissed at that time "for want of a substantial federal question." But the situation has changed considerably since then. It may have escaped your notice, but Congress passed a law back in 1996 directly related to the matter of same-sex marriage, and that certainly demonstrated that the "substantial federal question" had since developed.

          Add to that the fact that there are now two cases that have been granted cert to be argued before the Supreme Court and the declaration that there is a "want of a substantial federal question" is clearly no longer operative.

          Perhaps you could try a little harder to keep up with history, if not the actual social progress taking place in the nation.

          Just saying.

          • hyhybt

            Thank you; somehow, even with DOMA otherwise so prominently in mind, in listing reasons that case wasn’t strong precedent it slipped my mind that Congress had explicitly passed a law making it a federal issue.

          • Curious

            Baker v. Nelson was a decision on the merits. It remains binding precedent.

          • hyhybt

            …and yet you make that declaration without even bothering to address all the reasons people have given for saying it isn’t, or for that matter providing reasons for your claim that it is. Please, proceed.

          • Curious

            It is a fact. I don’t need reasons.

          • Aaron Springs

            >> Baker v. Nelson was a decision on the merits. It remains binding precedent. <<

            ROTFLMAO!

            Good luck with that!

            :)

          • Curious

            All DOMA did was to prevent the federal government from recognizing SSM approved by states. It has no relevance to whether or not a state law restricting marriage to a union between a man and a woman presents a federal question.

    • hyhybt

      Have you read the transcripts? It’s not his fault your side couldn’t be bothered to present evidence. “You don’t need to see evidence,” they said instead.

      • Curious

        Nonsense.

      • Curious

        “You don’t have to have evidence of this point if one court after another has recognized–let me turn to the California cases on this.” Id. at 3040:3-5 (emphasis added).

        Walker stripped the first nine words of counsel’s statement from its
        context, distorted its meaning, and created the patently false impression that Proposition 8′s proponents had refused to offer evidence and other authority in support of society’s procreative interest in marriage.

        • hyhybt

          I will admit it’s a too-convenient quote, but it’s long been widely reported before Walker used it himself. For that matter, the purported reasons for not supplying evidence do not change their lack of it.
          Besides, is there no merit to a “let’s see what the facts actually are, rather than assuming other courts, long-dead people from other fields entirely, and second-hand or worse sources have it right” approach?

          • Curious

            It’s in Walker’s judgment . . .

          • hyhybt

            …which is no answer at all to the meat of my post. Or even the trimmings, since the quote was widely circulated during the period between when it happened and when the judgment was released. Again: the supposed reasons given for not showing evidence do not alter the fact that evidence was not shown.
            Also, you ignored the question in the second paragraph: “Is there no merit to a ‘let’s see what the facts actually are, rather than assuming other courts, long-dead people from other fields entirely, and second-hand or worse sources have it right’ approach?”

  • JPeron

    Stupid to say he should have recused himself. Proponents of Prop 8 said straight people would “benefit” from it. So, should straight judges have recused themselves as well? Exactly who could judge the case? Bless Reagan for appointing him first, and then Bush the Elder for getting the nomination through.

    • Curious

      Lawyer and ethicist Jack Marshall, supporter of same-sex marriage, on Walker’s failure to disclose he was in a long-term same-sex relationship:

      “Reluctantly, I have to agree that his disclosure, a year after his ruling, that he was in a committed relationship with a man when he was ruling on Proposition 8 alters that conclusion. Weeks ago, former federal district judge Vaughn Walker, who ruled last summer in Perry v. Schwarzenegger that California’s Proposition 8 is unconstitutional, publicly disclosed for the first time that he has been in a same-sex relationship for the past ten years. A straightforward application of the judicial ethics rules compels the conclusion that Walker should have recused himself from taking part in the Perry case.”

      • ldfrmc

        Z-z-z-z-z-z-z-z-z

    • Curious

      Judge’s impartiality ‘might reasonably be questioned’ is the test.
      Section 455(a) sets forth a single, broad ground for disqualification of
      federal judges: A federal judge must recuse (i.e., disqualify) himself or
      herself ‘in any proceeding in which his (or her)impartiality might reasonably
      be questioned.’ [ 28 USCA Section 455(a); United States v. Anderson (5th
      Cir. 1998) 160 F.3d 231, 233-234]

      This obligation is identical to that set forth in the Code of Conduct for United States Judges Canon 3(C)(1), which provides: ‘A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned … ‘ [See First Interstate Bank of Arizona, N.A. v. Murphy, Weir & Butler (9th Cir. 2000) 210 F.3d 983, 987,fn. 6]

      The statute’s purpose is to promote public confidence in the integrity of the judicial process: ‘The goal of section 455(a) is to avoid even the appearance of partiality.’ [Liljeberg v. Health Services Acquisition Corp. (1988) 486 U.S. 847, 860, 108 S.Ct. 2194, 2203 (internal quotes omitted)]

      ‘Close calls’ decided in favor of recusal: The statute’s use of the word ‘might’ (‘might reasonably be questioned’) makes clear that a judge should decide ‘close calls’ in favor of removing himself or herself from the case. [New York City Housing Develop. Corp. v. Hart (7th Cir. 1986) 796 F.2d 976, 980; In re Chevron U.S.A., Inc. (5th Cir. 1997) 121 F.3d 163, 165; United States v. Holland (9th Cir. 2008) 519 F.3d 909, 912]

      • ldfrmc

        yawn

      • hyhybt

        Again, ON THE SAME EXACT GROUNDS the impartiality of a *straight* judge could also be questioned. So: who do you suggest could hear the case?

        • Curious

          Not correct. You just keep saying that but it does not make sense.

          • hyhybt

            So instead of just declaring it not to make sense, explain why it’s wrong.

          • Curious

            You need to first explain why “ON THE SAME EXACT GROUNDS the impartiality of a *straight* judge could also be questioned.”

            I am not going to attempt to prove a negative.

          • hyhybt

            It’s simple logic: if the judge’s orientation inherently biases him towards one side, the opposite one would bias towards the other side. Especially since the proponents were arguing (very badly, but still) that allowing gay marriages to proceed would harm straight marriage.
            I’m not, here, asking for proof of anything. Just an explanation of what you see wrong with that reasoning; why it does not apply.

          • Curious

            But that is not the test for recusal. Go back to the test and read it.

          • hyhybt

            I HAVE read it. If this judge fails the test for being gay (or, to follow your meaningless nitpick, because he has a partner) then, for the reasons I explained and which you have not bothered refuting, a straight judge (or, likewise) would fail as well. Both, at least if the defendant’s case were true, would likewise have similar reasons to be considered biased, but in opposite directions.
            If you don’t believe that to be true, then have the decency to explain why, in your view, it doesn’t fit, rather than simply declaring it doesn’t and telling me to read better.

          • 1SkyCaptain1

            You are being blatantly disingenuous. Walker was admonished three times by higher courts for his blatant favoritism during his sham trial; once before the curtain rose.

            To be reversed once, in the middle of a proceeding, is bad enough, but you see nothing wrong with being reversed three times; each time favoring the side he associates with.

          • hyhybt

            I didn’t say there was nothing wrong with having to be reversed. I said it’s only evidence if BIAS if you show that the procedural decisions that were reversed were designed to favor one side. This you have not done. Certainly neither the Appeals nor Supreme Courts said any such thing.

          • 1SkyCaptain1

            The higher courts have showed that in their stated rational for reversing Walker three times; once by SCOTUS.

          • hyhybt

            Where, or alternately, what exactly did they say? Your track record thus far leans towards misrepresentation, so I have no reason to just take your word that they said any such thing, especially since I followed things very closely when they happened and never saw either higher court state that Walker was biased, much less that that was either his or their reason for those procedural decisions.

          • 1SkyCaptain1

            My track record is/has been 100% accurate!

            SCOTUS, in a 5 to 4 decision, reversed Walker’s attempt to broadcast his sham trial, the 9th then reversed him two more times; including his refusal to return recordings he was ordered not to make; and he promised he would never broadcast.

            http://www.eppc.org/publication/eppc%C2%80%C2%99s-supreme-court-amicus-brief-in-proposition-8-marriage-case/

            But you knew that; didn’t you?

          • hyhybt

            First, you haven’t addressed the matter of BIAS. You claimed earlier that the court said there was bias, but when asked to show it, you instead reverted to merely showing examples where a decision was overruled. Do you understand the difference? -
            Second, he was never ordered not to RECORD the trial.

          • 1SkyCaptain1

            Yes; he was ordered not to record the trial; that is what SCOTUS ruled, above and beyond not broadcasting; the same rational used by the three Jurist appellate for ordering Walker to return the video he obtained in direct opposition to a higher court ruling.

            And I did not state that the higher courts found bias; I stated:

            “Walker was admonished three times by higher courts for his blatant favoritism”

            He was admonished by being over-ruled; all three times in response to actions he took to favor the same side; the side he was/is on.

            You are being blatantly disingenuous; something you have in common with every marriage corruption supporter I have ever happened upon. The fact that you can sit their cheering when your oppositions rights are blatantly violated in support of your depravity only serves to prove how disreputable you truly are.

          • hyhybt

            Where in this, exactly, are you claiming to have evidence that he was overruled FOR FAVORITISM?
            The only point that matters, and the one you consistently refuse to provide, while simultaneously claiming already to have done it. Or, in this case, claiming, contrary to all sense, that being overruled is the same thing as being admonished for favoritism.
            Where, for that matter, was he prohibited from RECORDING the trial? Evidence, please; you have repeatedly shown there is no reason to take you on your word, particularly when what you say so directly contradicts reporting at the time.
            I am not being disingenuous. *You* claim favoritism, *you* show it happened. NOT, again, merely that the judge was overruled, because, again, that’s not the same thing at all.
            (Nor am I in favor of violating anyone’s rights. I am, however, opposed to people getting away with presenting a favored position they formerly held to themselves being granted to others as well or their not being allowed to use the force of law to impose their beliefs on those who do not hold them as if being set higher than everyone else were somehow a right they had that was being taken away. Also: if you want an example of depravity, look to those who want to treat people badly merely for liking those of the same sex rather than the opposite one.

          • 1SkyCaptain1

            It was all addressed and substantiated. Not doing so to your satisfaction only serves to prove your disingenuousness.

            Walker should have recused; as Jurist Reinhardt should have – the most reversed Jurist in U.S. history. Your refusal to acknowledge the total disregard for the rights of your victims is indicative of the depth of your corruption.

      • Toine

        Curious – I give you high marks for the clarity of your arguments and the factual and legal grounds on which they are made. I concur wholeheartedly with your position. It must tire you casting sound cogent arguments before the blind bias and fevered pitch of those intellectually dishonest commentators who greatly outnumber you. I laugh at your resiliance in going toe-to-toe with them without compromise. I had your stamina for polemics when I first graduated law school but have mellowed in recent years. However, I still like a sharp focused argument when I come across one. Keep up the quality work. Kudos.

  • Mikey Mistersunsetboulevard

    A true hero and champion for all. He was appointed by the most conservative President we’ve ever had, yet stood up for fairness and freedoms for us all under the law of the land. Of course those stemmed in pure hatred for another demographic (in this case, gays) hate to see people they hate attain rights that harm them not one bit…..but too bad, so sad. Society is evolving, progressing and humanity WILL be prevailing at an unwavering pace. Don’t like it? You’ll be the one left miserable. Not the rest of us happy for those able to sanction their committed relationships, living with the same joy and freedoms as everyone else. Welcome to 2013.

    • hyhybt

      It’s a bit sad to see someone called a hero for conducting a fair trial and reaching the only rational conclusion possible from the resulting evidence. (And so far as how it was conducted, it *was* a fair one, if not slightly leaning the opposite direction. He was practically begging the other side to give something, anything to support their position; that they didn’t, that they even said flat out that they didn’t have to, can hardly be blamed on the judge!)

      • Curious

        Absolutely false and utter nonsense.

        • Eric Westby

          Apparently we’re at an impasse. I’m not surprised!

        • hyhybt

          If so, then you’ll presumably be happy to demonstrate how the trial was conducted in an UNfair manner. Concrete examples, mind you, not hand-wavy vague declarations or assumptions.

      • Curious

        I have provided a substantive response to this below proving the falsity.

  • Curious

    Unsurprisingly, the only responses to my reasoned comments are name calling. Clearly, you have no real arguments to advance other than calling me a “bigot” and a “coward.”
    Very sad indeed.

    • Eric Westby

      Friend, we’ve rebutted each of your arguments in turn, and you’ve ignored ours, instead changing the subject from judicial to political calculations.

      I genuinely do respect your willingness to state your views in the face of tough opposition, but I’d respect you more if you had the stones to use your real name. You know, the way people who write letters to the editor have been doing for decades?

      • Curious

        You have rebutted nothing. Identify myself so that I can be attacked by a mob?

        • Eric Westby

          All I can do is throw up my hands at this point and state that, while you are entitled to your opinion, it doesn’t comport with either the facts or the relevant precedent. Your repeated statements that Walker was ethically required to recuse himself represent a fringe belief.

          I’ll still defend to the death your right to declare it!

          • Curious

            ” Your repeated statements that Walker was ethically required to recuse himself represent a fringe belief. ”
            And yet you have not explained why in light of the statute.

        • hyhybt

          Have the basic decency to address the points other people make, rather than just typing “nonsense” and no explanation.

      • hyhybt

        Commenting on Disqus is not equivalent to submitting letters to the editor, an there’s nothing even remotely unusual about using a made-up screen name. All insisting that real names in this context would do is to encourage people to make up real-*sounding* names and, for those who really do use their genuine ones, increase the risk of some nut job looking them up in real life. Neither of those is beneficial.

        • Eric Westby

          hyhybt wrote “Neither of those is beneficial.”

          I completely and passionately disagree! I fall in with Mark Zuckerberg, who believes that the use of real names is critical in bringing a measure of civility to the online world.

          I respect your opinion, but please know that mine is not a fringe view. Anonymity breeds incivility.

          • Curious

            And yet you have been uncivil and I have not.

          • jomay

            How exactly? Merely by holding a different opinion than yours?

          • hyhybt

            By accusing him of cowardice merely for using a screen name that’s not the name he goes by in the real world.
            I don’t know about anyone else, but I’ve had this name a long time; it provides a comfortable separation between online discussions and real life, but it doesn’t hide *who I am* in any sense other than making it slightly more difficult to find me in person. I use the same name (and picture) virtually everywhere I go online, and do not invent personalities other than my own or play other games of that sort. I am, admittedly, freer with my opinions online; not because I’m ashamed of them or because I like riling people up (indeed, I prefer not to) but, at least partly, yes, because it doesn’t affect real-world relationships with people I actually know. There are subjects I do not talk about in person, even when I know the other person well and even, for that matter, when we essentially agree; it’s just not comfortable. There’s also the risk of damaging a relationship over a disagreement when we otherwise get along fine, something you don’t have to worry about with someone you don’t know. But all that means is that requiring real names stifles *genuine and honest discussion* as well as making it very slightly less common for people to be deliberately obnoxious for its own sake.
            Put it this way: Curious, for all I know, might be my neighbor across the street. I don’t know my neighbor’s views on Prop 8 or gay anything in general, and I’d rather keep it that way; it might unfavorably color other things, and there are always a few people who simply cannot get along with anyone they disagree with. That shouldn’t be any reason not to discuss such things with assumed strangers online.

          • Eric Westby

            Hogwash! I’ve expressed my respect for you on three separate occasions. I really do appreciate your point of view and your passion.

          • Curious

            Calling someone a “bigot” and a “coward” are not civil.

          • Eric Westby

            I never ONCE called you a bigot. Lying does not help your case!

            And what of your assertion that Judge Walker is “a disgrace to the judiciary”? That strikes me as uncivil.

            Let’s call a truce.

          • to_tell_the_truth

            Calling someone the equivalent of rapist, child-molester, necrophile, pederast, sodomite, beastialist, and “worse than terrorists” is also not civil.
            I’m not saying you specifically said those things, but they get hurled from your side all the time.
            I’d trade you a “coward” for a child-molester charge any day. Your side has NO claim to civility in this debate.

          • hyhybt

            There are rude and nasty people on all sides of every issue. I’d hate to be saddled with blame for every nasty thing everyone who agrees with me on any point has ever said. If Curious himself has neither directly called anyone those things nor used arguments that would mean that they’re true, then that other people do is not *his* being uncivil.

          • to_tell_the_truth

            You’ve been EXTREMELY uncivil. Don’t make me copy & paste.

          • hyhybt

            Well, that depends. There is no shortage of people who are uncivil even when forced to use their real names, nor of people who are polite no matter what name they go by.
            Meanwhile, making it easier for the nuts you run into in news articles’ comment areas to find you in real life can be dangerous… even if you did nothing a rational person would even find offensive. Then there’s the matter of work; I originally chose this name about fifteen years ago for a site where people could vent about their jobs. There’s absolutely nothing wrong with doing that, yet doing so with your real name invites both animosity from *other* coworkers, customers, etc. and potentially loss of the job.

          • to_tell_the_truth

            I used my real name – once – and had two credible death threats from the frabid frightwing within 48 hours of doing so. I found that pretty “un-civil”. So, no thanks.

    • hyhybt

      Splitting your comment above into three parts: 1) The names are far from the only response you’ve gotten; 2) there have been rebuttals to your claims, the *substance* of which you have not so far addressed°; and 3) no, people shouldn’t call you names. That never helps anything. But I have to ask: do you ever call people on the other side from yourself names?

      °Merely declaring a statement to be wrong and/or repeating your own previous claim doesn’t count. The important thing is to explain. For example, after your post saying the law already treats gay and straight equally, I and someone else each didn’t just say “no it doesn’t,” but explained *why* we see your claim as faulty; I included an analogy. Any disagreeing answer to those that’s worth reading, then, will explain why you believe the analogy to apply and why it’s more equal to judge relationships by people’s bodies rather than by the actual relationships being judged. Especially, why “gay and straight alike can marry the opposite sex” is more equal than “gay and straight alike can marry someone of either sex.”

      • Curious

        I have provided the statute and the test for recusal. Address it. No analogies – they are irrelevant.

        • hyhybt

          That makes no response in this part of the thread, which descends from your reference to “no federal question.” I listed reasons that was an unsound precedent, to which you responded by *attempting to compare it to Roe v Wade.* I pointed out that both the issues involved and the nature of the rulings were too different for that comparison to be valid. Any on-topic response from you along that branch would then be along the lines of explaining why it’s a valid comparison after all (including why my reasons for saying it isn’t don’t apply) or else a retraction of the comparison and continuing from before it was made.
          Instead, you offer this non sequitur.

          • Curious

            Saying it is an “unsound precedent” (whatever that is) does not make it so. I have reviewed your post again and can find no “reasons” why SCOTUS’s ruling is no longer precedent, especially since it is. The fact that the decision was some years ago is neither here nor there, as I have shown by reference to Roe v. Wade, even though the passage of time impacts Roe v. Wade very fundamentally.

          • hyhybt

            Precedent is a matter of degree. I can see how you could have missed my reasons, and I neither spelled them out in detail nor listed all of them, so here goes a longer version. And I sincerely hope this site’s implementation of Disqus shows paragraph breaks. I’m making them, but some places deliberately and obnoxiously strip them out when displaying comments.
            First and foremost, the Baker case was one they essentially refused to rule on at all. The court didn’t then have the power it does now to choose its own docket, but what they did there was a near equivalent. Their deciding not to take up the issue at that point, even aside from anything else, is at most extremely weak as a precedent. (And, of course, since they *did* take on the Roe case and issued a full ruling, on this point the two don’t compare.)
            There are also intervening rulings to consider. Many of them at least reasonably could be read as applying in this case, Romer and Lawrence being the most obvious. Add to that four decades of both societal change and scientific study relating to sexual orientation. Add to that, too, the difference in how even straight marriage is seen, both legally and societally: husband and wife are now much more generally treated as equal partners to a marriage. Legally, especially, there is not supposed to be any difference in their roles. That wasn’t true even in 1970, though it was more nearly true then than it had been previously.
            So the question is, why would those *not* affect the relevance of the Baker non-decision?

          • Curious

            Fisrt, Baker is a decision on the merits and is binding.
            Second, whether or not society’s views on SSM have changed has no bearing on whether or not a state law contravenes equal protection under the US Constitution.
            Roe v. Wade, which is acknowledged by all to lack any legal merit, should, however, be revisited, since science and medicine have advanced considerably making the court’s view of viability in that case obsolete.

          • hyhybt

            Hold on a moment: since when is Roe v. Wade “acknowledged by all to lack any legal merit?” That runs contrary to everything I’ve ever seen about the case and the issue more generally from BOTH sides.
            Not that it’s particularly relevant anyway.

  • ldfrmc

    Some day those video tapes of the trial will be viewed by the public.

    Most people will laugh and ask: How could Proposition 8 ever be considered legal, respectful, or rational?

    • Curious

      Illinois fails to pass gay marriage bill, black caucus reportedly a problem.

      The Illinois Senate had already passed gay marriage legislation, the governor promised to sign it, but the House fell short in what was expected to be a victory today, but now has turned into defeat.

      The Sun Times says the state House black caucus was a big part of the problem.
      http://americablog.com/2013/05/illinois-fails-to-pass-gay-marriage-bill-black-caucus-a-problem.html

      • elVatoLoco

        You must be one of the shady NOM people driving to drive a wedge between blacks and gays

      • hyhybt

        That’s an unusual definition of “defeat.” The bill is not dead; they just postponed the vote until the fall session.

      • ldfrmc

        So? They bring the bill back and vote this fall.

        California 13th state – July
        Ilinois 14th state – September
        New Mexico 15th state (sometime this fall)

        Or some similar order. Another banner year for marriage equality.

        • hyhybt

          I still don’t understand New Mexico. If the law there does not limit marriage to opposite sex couples, why do they not have gay marriages?

          • Frank Grimes

            Because NM is the only state in the country that never enacted(via the legislature or as a constitutional amendment) a same sex marriage ban, and they also haven’t passed a gay marriage law either. There are local domestic partnership laws in certain NM communities, though.

          • hyhybt

            Right, but that doesn’t really answer the question. Why would they need a law specifically saying that gay couples *may* marry when existing marriage law doesn’t prohibit it?

  • jackbequick

    I’m the troll in the room: “Yes, let’s have a discussion about how awesome it is that people are less discriminatory at the Hyatt Regency, a place where worker rights abuses happen on a scale similar to Tsunami.”

  • Curious

    The Ninth Circuit of Appeals Court concluded:

    The District Court attempted to change its rules at the eleventh hour to
    treat this case differently than other trials in the district. Not only did it
    ignore the federal statute that establishes the procedures by which its rules
    may be amended, its express purpose was to broadcast a high-profile trial that
    would include witness testimony about a contentious issue. If courts are to
    require that others follow regular procedures, courts must do so as
    well.

    Id. at 714-15.

    • hyhybt

      All well and good, except it doesn’t support the claim you made.

      You have shown an example of one of the judge’s technical decisions being overruled based on not being the correct procedure. What you have not shown is an example of BIAS. The entire trial, not just certain parts of it, was to be available for broadcast, and this decided in advance of knowing how it would proceed. ANY effect this would have on either side, it would have on both, except for one: some of the defense’s witnesses used it as a transparent excuse to get out of having to testify under oath, pretending that the video would somehow magically put them in danger even though both their identities and their views were already widely known and even though transcripts, which would have been (and indeed have been) available regardless of the video, free and freely available to anyone who was curious to see what happened in court.
      So: do you have some example that actually shows the bias you claim there to have been, or were you lying?

      • Curious

        I do not have the time nor the inclination to try and teach you. This was not a “technical” decision. Walker attempted to circumvent the very clear rules. And there are myriad analyses pointing out Walker’s bias. Your continued reference to “lying” is a poor substitute for debate.

        • hyhybt

          Coming from someone who, when asked for an example of BIAS, presents mere ODDITY in its place and then pretends it’s his listener’s fault for pointing that out and asking for an explanation, that’s a rich complaint indeed.

          • AndroidProfit

            Don’t feed the conspiracy theory trolls. They seem to think that MAGICALLY anecdotal evidence is somehow fact.

          • hyhybt

            I prefer not to assume anyone is a troll unless their posts leave no other possibility open, and nothing I’ve read thus far suggests conspiracy.

      • Curious

        EXCLUSIVE: EMails Show Prop. 8 Judge Sought Ted Olson’s Advice On Whether to Attend Supreme Court Argument on Gay Marriage

        Vaughn R. Walker, the judge who struck down Proposition 8, California’s gay marriage ban, sought Ted Olson’s opinion regarding whether Walker should attend next week’s Supreme Court arguments on the gay marriage cases. Olson was one of the lawyers who successfully persuaded Judge Walker to strike down Proposition 8 after a trial held in 2010.

        In December 2012 emails obtained exclusively by Patterico.com, Judge Walker, who retired in February 2011, asked Olson’s law partner to “ask Ted if he thinks my attending the argument would be an unwanted distraction.”
        When Olson’s law partner responded that Olson thought Walker’s attendance would be a “potential distraction,” Walker agreed not to go, saying he understood Olson’s reaction and was not surprised by it. Walker described himself as “only moderately disappointed not to see the argument,” and added: “Ted’s argument will be spectacular, I’m sure.”

        Although the emails likely breach no ethical rules — Walker retired in 2011 — they do suggest a cozy relationship between Walker and Olson that some observers may find revealing. Walker seeks Olson’s opinion regarding attending the argument, defers to Olson’s judgment, and praises Olson’s legal skills. Walker’s demeanor in the emails is that of a well-wisher who wishes to make sure Olson’s argument is not disrupted, rather than that of an impartial former jurist. It is difficult to imagine that Walker sent a similar email to the defenders of Proposition 8, seeking their opinion as to whether it would be appropriate for him to attend.

        • hyhybt

          …none of which even deigns to ADDRESS how he handled the case while it was before him.
          Again, *you* claimed he ran the case in a biased manner. When asked for examples, you instead provided, first, admittedly unusual decisions which, nonetheless, plainly seem (unless you can show reason to believe otherwise, which thus far you have not even attempted) neutral in character, and then his asking, long after his part in the matter was over, one of the lawyers involved his opinion.
          Pardon my saying so, but the extreme weakness of what you have chosen to present even by itself strongly suggests you have nothing even close to definitive.
          By the way: if no judge who has any preference at all on any grounds for one side or the other can preside over a case, then for most cases, no judge can preside over them, period. As with objective journalism, the idea is to make *decisions* in an impartial manner, not to have no personal views whatsoever. And at most, his asking advice about whether to attend arguments shows the latter.

        • scott_lewis

          What Judge Walker did *after* his opinion was written and the case put out there is irrelevant.

          • Curious

            No, it’s not.

  • Curious

    Lawyer and ethicist Jack Marshall, supporter of same-sex “marriage,” on Walker’s failure to disclose he was in a long-term same-sex relationship:

    “Reluctantly, I have to agree that his disclosure, a year after his ruling, that he was in a committed relationship with a man when he was ruling on Proposition 8 alters that conclusion. Weeks ago, former federal district judge Vaughn Walker, who ruled last summer in Perry v. Schwarzenegger that California’s Proposition 8 is unconstitutional, publicly disclosed for the first time that he has been in a same-sex relationship for the past ten years. A straightforward application of the judicial ethics rules compels the conclusion that Walker should have recused himself from taking part in the Perry case.”

    • hyhybt

      Thank you; that’s a start.

      It doesn’t really get anywhere, though. You’re merely presenting someone else who agrees with your own opinion rather than reasons your opinion is the correct one. And, again, LONG-standing precedent says that belonging to a general class of people, such as race, religion, or orientation, does not require recusing yourself from cases that involve those characteristics.
      (And again I find myself stuck assuming you’re aiming at tired old points you haven’t actually bothered to make. Presumably, though if you give some other reason that makes sense I’ll gladly accept it, you’re trying to say that it’s not that he was gay, but that he had a male partner. The thing is, the one is too closely tied to the other for that to be a relevant distinction. At a *minimum* you would need to show that he and his partner want to get married. The fact that they could have for half of 2008 but chose not to, even knowing Prop 8 might again make it impossible, does not prove they *don’t* want to marry, but it does all the more leave the weight of showing they *do* on the side of those claiming bias.)

      • Curious

        My point has been that Walker should have disclosed his orientation and personal relationship at the outset. Looking at the rules and statutes, that is pretty much an unassailable argument. The parties could then have decided whether or not to move for his recusal, and such a motion would or would not have been granted. Walker decided however, not to allow anyone to challenge his hearing the case.
        The obvious question is :why?

        • JeffreyRO55

          This “argument” has already been discussed and Walker’s need to recuse rejected. No reasonable person would believe him incapable of rendering a fair decision because of his sexual orientation or relationship status.

        • hyhybt

          Well, no, it’s not an argument at all. It’s an assertion, and obviously not an unassailable one since so many have in fact provided reasons to take the opposite view.

        • scott_lewis

          Because being gay is not grounds for recusing yourself from a case. Judges with kids don’t recuse themselves from family law cases. Straight judges don’t recuse themselves from marriage-rights cases. Judge Walker’s sexual orientation is irrelevant.

      • Curious

        Judges have an ethical duty to ‘disclose on the record information which the judge believes the parties or their lawyers might consider relevant to the question of disqualification.’ [Porter v. Singletary (11th Cir. 1995) 49 F.3d 1483, 1489; American Textile Mfrs. Institute, Inc. v. The Limited, Inc. (6th Cir. 1999) 190 F.3d 729, 742]
        No one can argue with a straight face that Walker did not believe that information about his sexual orientation and long term same sex relationship might have been considered relevant.
        Walker was aware of the obligation. Walker failed to comply with it.

        • hyhybt

          Precedent says it’s not relevant, an all lawyers involved in the case would be well aware of that and therefore have no excuse to believe that it was.
          Notice, also, that when it was nonetheless argued in court once a different judge was assigned the case (and a straight one, apparently, since you’re so hung up on that) it was ruled *not* to be relevant and *not* to have been inappropriate not to bring it up.

          • Curious

            You don’t move for recusal based on “rumors.” Walker had an obligation. He failed to live up to it. Open and shut.

          • hyhybt

            Rumors have nothing to do with it either.

          • Curious

            And the fact that there are supporters of same sex marriage who are legal scholars and who agree with me means by definition that reasonable people can disagree and as such, Walker’s obligation was clear. Wheteher a motion for recusal would have succeeded or not is beyond the point.

      • Curious

        Judge’s impartiality ‘might reasonably be questioned’ is the test.
        Section 455(a) sets forth a single, broad ground for disqualification of
        federal judges: A federal judge must recuse (i.e., disqualify) himself or
        herself ‘in any proceeding in which his (or her)impartiality might reasonably be questioned.’ [ 28 USCA Section 455(a); > United States v. Anderson (5th Cir. 1998) 160 F.3d 231, 233-234]

        This obligation is identical to that set forth in the Code of Conduct for United States Judges Canon 3(C)(1), which provides: ‘A judge shall disqualify himself or herself in a proceeding in which the judge’s
        impartiality might reasonably be questioned … ‘ [See First Interstate Bank of Arizona, N.A. v. Murphy, Weir & Butler (9th Cir. 2000) 210 F.3d 983, 987, fn. 6]

        The statute’s purpose is to promote public confidence in the integrity of the judicial process: ‘The goal of > section 455(a) is to avoid even the appearance of partiality.’ [Liljeberg v. Health Services Acquisition Corp. (1988) 486 U.S. 847, 860, 108 S.Ct. 2194, 2203 (internal quotes mitted)]

        ‘Close calls’ decided in favor of recusal: The statute’s use of the word ‘might’ (‘might reasonably be questioned’) makes clear that a judge
        should decide ‘close calls’ in favor of removing himself or herself from the case. [New York City Housing Develop. Corp. v. Hart (7th Cir. 1986) 796 F.2d 976, 980; In re Chevron U.S.A., Inc. (5th Cir. 1997) 121 F.3d 163, 165; United States v. Holland (9th Cir. 2008) 519 F.3d 909, 912]

        • hyhybt

          Thank you. This is very helpful: it shifts things to what is reasonable. The thing is, though, “reasonable” is always going to be at least somewhat subjective.
          I hope, in others among the posts I have not yet read, you further addressed your claims of actual bias in the case itself.

    • AndroidProfit

      This, “argument” has been DESTROYED!

      “Judge Walker’s decision is going to stand or fall on appeal on its merits; whether the ballot initiative violated the equal protection rights of California’s citizens to marry their same-sex partners. It is going to be decided upon whether his findings of fact and conclusions of law were correct, and reasonable, and legally justifiable. It is not going to be decided by whom the judge is dating or what his sexual orientation may be. And it is certainly not going to be decided because a trial judge failed to disclose to the litigants before him who he was (or was not) seeing during the trial.”

      http://equalityontrial.com/2011/04/26/more-coverage-and-analysis-on-prop-8-sponsors-motion-to-vacate-ruling/

    • scott_lewis

      Using that logic, a heterosexual judge would also have had to recuse themselves from the case. Or anyone with any type of sexuality. Are there enough asexual judges to find one to hear the case?

      • Curious

        Not true at all.

      • hyhybt

        For that matter, an asexual judge might not really understand why people care.

  • Curious

    Supreme Court Justice Elena Kagan: “There is no federal constitutional right to same-sex marriage.”

  • Curious

    Supreme Court Justice Elena Kagan: “There is no federal constitutional right to same-sex marriage.”

    • hyhybt

      Context matters. What were the several sentences before that statement, and under what circumstances was it uttered if it was at all?

  • Lesbian and Trans Rights

    Mikey Mistersunsetboulevard, you are nothing but a transphobia jerk. You are just as racist as the other rich gay jerks. You have a problem with me you sexist jerk. Just another hypocrite claim to be for equality, but you just for privalage white gay men are very racist. I know the truth about the Castro, it is A RACIST AND SEXIST PLACE THAT ONLY FIGHTS FOR THE RIGHTS FOR RICH WHITE GAY ME, not for lesbians, bisexuals and transexuals.

  • DERP

    I simply love the fact that the bigots and religious nuts are really the only people that oppose it, but it’s scary how many of them there are. Also, scroll down and look for the haters… SHOCKING that the literacy level drops the more hatred there is. I guess the only real way to get married is to drop out of school in 5th grade and knock up your sister.