Court Hears Arguments On ‘Biased’ Gay Judge Issue


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.

From SF Gate:

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.

From Keen News Service

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.

[Read the full Keen News Service round-up here.]

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.

Related Reading:

California Supreme Court Hears Prop. 8 Standing Issue

Unsealing of Prop 8. Trial Tapes Gets Hearing

Prop. 8 Tapes Case May Itself be Recorded

Photo used under the Creative Commons Attribution License, with thanks to angela n.


David Anderson
David Anderson6 years ago

I would have to conclude that a gay judge in a relationship would have a much stronger personal vested interest than a straight judge whose sensibilities may be affected but not his personal life. That said, it is very difficult to find someone who would be truly impartial.

Christopher C.
Christopher C6 years ago

If these so-called Christians are so proud of what they did in 08 and all the trials afterward, why are they so afraid to have the transit tapes made public? Something to hide?!?

Cori J.
Cori Johnson6 years ago

Everyone is biased and we live in a world where we trust those in charge try to minimize their bias and do whats right even if it goes against their belief.

Chad A.
Chad Anderson6 years ago

Let me get this straight... gay judges cannot be trusted to judge on marriage, but non-gay judges (who presumably have an interest in marriage rights, too) can be? This kind of question is so basic that everyone is involved and no one can be unbiased. Change can not only happen when those without rights are granted rights by those who deny the rights. Willful denial of rights is a bias, too.

alex l.
alex l6 years ago

i find it interesting that they assume the judge would allow his personal life influence his decisions.
he decided based on the law, not who he loved, but let's go with this.
can we overturn other judge's findings if they are Christians, because they will obviously be biased based on their faith?
what about male judges or white judges?
or female, or tall?

this clearly states that anything that a judge is, could bias their decisions.
which would mean all findings throughout time would have to be overturned.

the law clearly shows that this prop. is a crock, and a violation of rights.
the sexual orientation of the judge has little to do with it - but they are saying that if he is gay, be can't be a good judge.
that in itself is hate.

Sara W.
Sara Williams6 years ago

So, a gay man can't decide if gay couples should be allowed to marry...but a straight man should decide? Are these people LISTENING to their selves?? Hello?!! "All men are created equal...?"

Who someone dates in no way impacts anyone else except for the two people in the relationship. If you don't want people criticizing you for your partner choice, don't criticize anyone else.

Christopher Fowler

The Prop 8 people are grasping at straws on all of this. They know that they have no standing to appeal their case and they are using the typical right wing Christian tactic of doing an end run around the issue in order to get their way.

I find it disturbing that of all of the things that these people are concerning themselves, other people's private lives is so high on their list.
So what if the judge is gay? So what if the other judges that agree with his decision are straight? The issue is not the sexuality of the people, but on whether they are guaranteed the same rights and protections as everyone else.
The 14th Amendment to the US Constitution already guarantees that. Now we need these idiot hatemongering Christians to recognize that reality.

Philip Shook
Philip Shook6 years ago

Odd, wouldn't one also consider a "straight" judge as possibly biased? I say get a bisexual judge then.

Victoria fellner
Victoria Fellner6 years ago

When I got divorced I never thought to ask the judge if he was divorced himself. I was in divorce court not the so called Christian court. People's rights should never be put up for the popular vote. At that rate nobody would ever have any rights. That's what happened to the Equal Rights Amendment which still has to pass.

Josephine T.
Josephine T6 years ago

FAUX News wants the tapes released, along with all the others named? Wow! That ought to be a slam dunk right there for releasing the tapes.