Some are calling it a "hail Mary" legal move, but backers of Proposition 8 filed a motion in federal court Monday calling on the Chief Judge who replaced Vaughn Walker to throw out Walker's sweeping 2010 decision striking down the ballot measure as unconstitutional. The basis for that motion: an interview Walker gave to Reuters earlier this year confirming that he is gay and in a committed 10-year relationship with another man.
“The American people have a right to a fair judicial process, free from even the appearance of bias or prejudice,” said Andrew Pugno, general counsel for the official proponents of Prop 8. “Judge Walker's ten-year-long same-sex relationship creates the unavoidable impression that he was not the impartial judge the law requires. He was obligated to either recuse himself or provide full disclosure of this relationship at the outset of the case. These circumstances demand setting aside his decision.”
Pugno says Judge Walker essentially "stood in the shoes" of the two same-sex couples who were plaintiffs in the case and that he, like them, may have benefited directly by his own decision to legalize gay marriage in California.
Can it work? UC Hastings law professor David Levine is highly skeptical. Levine points out that in any case involving gay and lesbian rights, "every judge has a sexual orientation and every judge has a marital status."
“Under governing California law Judge Walker currently cannot marry his partner. But his ruling in this case, if ultimately upheld, would give him a right to do so,” Pugno pointed out.
“We deeply regret the necessity of this motion. But if the courts are to require others to follow the law, the courts themselves must do so as well,” Pugno added.