A three member panel of the 9th Circuit Court of Appeals heard arguments on Thursday over whether Judge Vaughn Walker being in a same-sex relationship at the time he ruled to overturn California’s same-sex marriage ban, Proposition 8, should invalidate his ruling.
Defendant intervenors Protect Marriage argue that Vaughn Walker should have recused himself because his relationship introduced a bias.
They filed a motion to vacate the ruling earlier this year but found little favor with District Court Judge James Ware. Ware refused the motion in June, saying that without explicit proof of bias Vaughn Walker’s private life is of no more import than the race or sex of a judge, and if it were to be held as important it would set a dangerous precedent.
Similarly the three member Court panel, Ninth Circuit Judges Stephen Reinhardt, Michael Daly Hawkins, and N. Randy Smith, seemed skeptical of Protect Marriage’s argument that Vaughn Walker had a particularized interest in the outcome.
In two hours of hearings at the Ninth U.S. Circuit Court of Appeals in San Francisco, a three-judge panel questioned claims by a lawyer for Proposition 8′s backers that former Chief U.S. District Judge Vaughn Walker’s then-undisclosed relationship gave him an improper stake in the outcome of his own ruling.
“So a married judge could never hear a divorce?” asked Judge Michael Hawkins.
That’s different, replied Prop. 8 attorney Charles Cooper, because Walker’s longtime relationship would raise an “obvious question” for most people – whether he would get married if he had the right to do so. That alone should have required the judge to disclose his intentions before the trial started in January 2010, Cooper said.
But Judge N. Randy Smith said Cooper was essentially arguing that a judge in a divorce case would have to disclose difficulties in his own marriage. And Judge Stephen Reinhardt said Cooper’s position might also disqualify married heterosexual judges from considering Prop. 8, since backers of the measure argued that same-sex unions would weaken traditional marriage.
However, Protect Marriage’s arguments seemed more successful on a second issue, that of the unsealing of trail tapes. Protect Marriage lawyers argue that tapes of the trial proceedings should not be released because Judge Vaughn Walker originally promised they would be for court use only.
Concerning the videotape, Yes on 8 attorney David Thompson claimed there were four potential injuries to allowing the videotape to be “broadcast” to the public today. (He contends that even posting the videotape on the court’s website constitutes “broadcast.”¯) The only argument the judges seemed interested in was one claiming that release of the videotapes would diminish judicial credibility. Walker, said Thompson, assured Yes on 8 attorneys he was videotaping the trial for his own use in chamber in preparing his decision. Releasing the tapes to the public contradicts that assurance.
But Ted Olson, the high-profile conservative attorney who helped stage the challenge to Proposition 8, argued that Walker also told attorneys he would include the videotapes in the trial record — a public record — and that Yes on 8 attorneys did not object.
The unsealing of trial tapes, while really more of a secondary issue to matters directly relating to Proposition 8, has garnered a lot of attention from the media and wider groups. Indeed, the City and County of San Francisco and media establishments including CNN, The New York Times, FOX News, and The Associated Press, have all joined Plaintiffs in asking the court to release the trial tapes, agreeing with Judge Ware’s previous ruling that the unsealing of tapes is vital for the transparency of the judiciary.
The 9th Circuit is currently considering an appeal of Judge Vaughn Walker’s original ruling overturning Proposition 8. They have promised to deal with the case on an expedited basis but as yet no decision date has been announced.
Photo used under the Creative Commons Attribution License, with thanks to angela n.