It was widely overlooked in the news media: The appeals panel that divided on California’s Proposition 8 also affirmed unanimously and quickly a lower court ruling that Judge Vaughn Walker had no duty to step aside from hearing the historic case due to his sexual orientation and long-term relationship with another man.
“As Chief [U.S. District] Judge [James] Ware explained, the fact that a judge ‘could be affected by the outcome of a proceeding[,] in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification,'” the panel of the Ninth U.S. Circuit Court of Appeals agreed in its ruling.
“Nor could it possibly be ‘reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by a proceeding.’ … To hold otherwise would demonstrate a lack of respect for the integrity of our federal courts.”
Supporters of Proposition 8, the ban on same-sex marriages approved by California voters, contended Judge Walker had a conflict of interest in hearing the case and he should have disclosed at the time his relationship; he disclosed it after his retirement from the bench.
Legal analyst Andrew Cohen, one of few in the media to seize upon the disqualification issue, wrote in the Atlantic:
“To their eternal credit, all three 9th Circuit judges spent little time dispatching the argument that served both sides of this battle: the question of Judge Walker’s sexuality. To Prop 8’s supporters, Judge Walker’s sexual orientation made him biased and thus worthy of being slandered; in their narrative, he became the reason they lost. To proponents of same-sex marriage, that argument itself highlighted the prejudices at play. But if same-sex marriage foes judge Judge Walker harshly, yesterday’s decision is a hint that history will be far, far kinder.”
Jon W. Davidson, legal director for LAMBDA Legal, a JAS partner group, said the court “rejected the desperate and insulting effort by Prop 8 proponents to vacate Judge Walker’s ruling by arguing that his sexual orientation and long-term same-sex relationship rendered him incapable of interpreting the law or upholding his sworn duty to rule impartially.”
The panel divided 2-1 in finding Proposition 8 unconstitutional. Much of the more in-depth reporting and commentary discussed the narrowness of the majority opinion by Judge Stephen Reinhardt, and its implications for possible Supreme Court review.
“[T]he Ninth Circuit did not hold that same-sex couples have a right to marry. It held that once a state has granted them the right to marry, it can’t take it away arbitrarily,” explained law professor Garrett Epps of the University of Baltimore” in The American Prospect.
“The most liberal judges in the most liberal state on the most liberal appeals court had an opportunity to make history. Instead, they opted to do far less,” wrote Dahlia Lithwick in Slate.
A Los Angeles Times article suggested that the ruling “was narrowly written to limit its scope to California’s borders and possibly even avoid review by the U.S. Supreme Court,” in the assessment of legal experts.
If the Supreme Court does agree to review the case, election law expert Rick Hasen of the University of California at Irvine said Judge Reinhardt’s opinion appeared crafted to appeal to swing-vote Justice Anthony Kennedy.
“By crafting the argument in this way, and making the case that the only reason for passing Prop. 8 was anti-gay animus, Judge Reinhardt has given Justice Kennedy a way to decide the case without embracing a major holding recognizing a right to same sex marriage generally,” MetroWeekly quoted Hasen as saying.
“Proposition 8 serves no purpose, and has no effect, other than to lessen
the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples,” the majority opinion said (see Gavel Grab).