Judge’s revelation prompts challenge to Prop 8 ruling

May 2, 2011

By Joan Biskupic, USA TODAY

WASHINGTON — Now that retired U.S. District judge Vaughn Walker has revealed he is in a committed relationship with a man, do grounds exist to cancel his ruling that California’s ban on same-sex marriage is unconstitutional?

Supporters of the ban, known as Proposition 8, say yes and have filed a motion contending Walker should not have heard the case because he might want to marry someday.

Law professors who specialize in legal ethics, such as the University of Minnesota‘s Richard Painter, say no and compare targeting Walker’s personal relations to targeting a judge’s religion or race.

The new claim filed by Washington lawyer Charles Cooper on behalf of the Proposition 8 backers is scheduled to be heard June 13. It marks the latest move in the protracted battle over the proposition adopted by California voters in 2008 and a new chapter in the debate over when judges should sit out disputes. Challenges to judicial ethics are hardly new, yet a spate of high-stakes appeals, including over new federal health-care legislation, have spawned fresh questions about judges’ impartiality.

Walker, a 1990 appointee of Republican President George H.W. Bush, told reporters in April that he has been in a relationship with another man for more than 10 years. Walker retired from the bench earlier this year. In February 2010, during the Proposition 8 trial, the San Francisco Chronicle wrote that Walker is gay and “has never taken pains to disguise — or advertise — his orientation.”

Walker’s August 2010 decision declaring Proposition 8 a violation of the Constitution’s equality guarantee is on appeal to the U.S. Court of Appeals for the 9th Circuit. That court has asked the California Supreme Court to first rule on whether the backers of Proposition 8 even have the authority to defend the law that state officials have declined to back.

In their April 25 filing to U.S. District Judge James Ware, supporters of Proposition 8 highlight Walker’s acknowledgment of a long-term relationship. “Given that Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced),” Cooper wrote, “it is clear that his impartiality might reasonably have been questioned from the outset.”

He said he was not asking that Walker be disqualified because he is gay but rather because of his long-term relationship. “Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case,” Cooper wrote. He declined to comment beyond the filing.

A spokeswoman for Walker said he was not commenting on the issue.

Legal ethics professors say the action against Walker is unlikely to succeed because opponents are focused on a personal characteristic. “It’s a variation on old territory,” says Northwestern University law professor Steven Lubet, “when African Americans faced recusal motions based on race and women based on gender. … These violate the central premise that we don’t put people into categories for the purpose of who presides over cases.”

University of Minnesota law professor Painter, who was a chief ethics adviser toPresident George W. Bush, says a judge need not step down because he belongs to a class of people affected by a case. Painter notes that male and female judges sit on sex discrimination cases.

To read more, visit: http://www.usatoday.com/news/nation/2011-05-01-prop_n.htm



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