Desperate Measures for Prop. 8 Supporters

A federal judge in San Francisco heard arguments Monday as to whether the landmark Proposition 8 decision by U.S. chief district judge Vaughn R. Walker should be thrown out because the now-retired jurist did not disclose his same-sex relationship (see updates on the hearing below).

Chief Judge James Ware, who is handling remaining trial-level issues concerning the Prop. 8 case following Walker's retirement earlier this year, heard the arguments at 9 a.m. Pacific time at the Phillip Burton Federal Building & United States Courthouse in San Francisco.

Supporters of Proposition 8 have argued that Walker's unequivocal August ruling striking down the ballot measure as unconstitutional should be vacated because he did not disclose his long-term relationship when randomly assigned the case.

Upon Walker's disclosure of his relationship in an interview with Reuters, proponents of the ballot measure that stripped California's gays and lesbians of the right to marry have argued that there is "a reasonable basis for concern that Judge Walker has a direct and substantial personal interest in the outcome of the case and that his impartiality could reasonably be questioned."

But the legal team led by attorneys Ted Olson and David Boies, who successfully argued against Prop. 8, has called the move "an utterly baseless attack on the integrity of the judicial system, on then-Chief Judge Walker, and on all gay and lesbian jurists who faithfully perform their duties and decide cases across this country each day."

"In fact, under [Prop. 8 supporters'] reasoning, African-American and female judges would have been required to recuse themselves in the most important civil rights cases in American history ... and all judges would be required to disclose their most private thoughts and relationships in order to preside over any case that involves constitutional rights they might conceivably want to secure for themselves and their families," Olson wrote in a May reply brief. "That is not the law -- and our Nation is much the better for it."

A phalanx of legal observers agree and expect Ware to deny the Prop. 8 supporters' motion.

"To listen to the supporters of Proposition 8, everyone in society, regardless of sexual orientation, is affected by marriage equality. A central argument against allowing gays and lesbians to marry has been that it will harm the institution of marriage," University of California, Irvine, School of Law's founding dean, Erwin Chemerinsky, wrote in an April op-ed for The Advocate. "This seems a silly argument, but it certainly means that there is no judge who would be unaffected by the constitutionality of Proposition 8."

The hearing comes one day after the 44th anniversary of the 1967 Supreme Court decision in Loving v. Virginia, which struck down state antimiscegenation laws (see video below).

UPDATE: During Monday's proceedings, Chief U.S. District Judge James Ware did not rule from the bench on the day's most pressing issue: Whether Judge Vaughn Walker's August decision striking down Prop. 8 should be vacated because of his decade-long relationship with a man. Ware told the court that he would likely decide the issue within the next 24 hours.

In the hearing Ware said that Prop. 8 supporters' motion to vacate Walker's judgment was the first time that a party had urged a jurist's disqualification based on sexual orientation. He grilled attorney Charles J. Cooper, who argued that Walker had a duty to disclose his relationship, on what direct evidence existed that Judge Walker sought to marry his partner and thus personally benefit from a verdict favoring marriage equality (Cooper had none to offer).

Representing the two gay couples who sued the state after Prop. 8 passed, attorney Theodore Boutrous said of his opponents in the case, "Their motion is targeting Judge Walker's sexual orientation, no matter how they try to camouflage it." (Read more here via Reuters.)

Ware suggested that he would likely not force Walker to return video footage of the trial now in his personal possession -- video that Ware himself gave to Walker during a retirement ceremony -- though Ware said he would issue a written ruling on the matter, Lisa Leff of the Associated Press reports.

"It was done under my auspices," Ware said of the video. "Technologists of the court presented him with a copy of the videotape for his personal possession, so I want to disclose that in case you wish to make an argument that somehow having presided over that event ... I should recuse myself," he told Cooper.

Ware also denied a request from Prop. 8's backers to force their legal opponents to return a copy of the trial video. The video, which Prop. 8 proponents have long sought to suppress, features testimony from a who's who of experts on LGBT history and social issues as well as purported scholarly opponents of gay marriage including David Blankenhorn, founder and president of the Institute for American Values. In his opinion Judge Walker wrote that Blankenhorn's expert witness status was dubious and that his testimony should be "given essentially no weight."

American Foundation for Equal Rights cofounder Chad Griffin issued a statement after the hearing, saying, "Today's hearing demonstrated yet again that the Proponents of Prop. 8 are extremists who will stop at nothing to keep committed American couples from marrying. They led a campaign that was homophobic and filled with animus. Just as those who opposed interracial marriage 44 years ago, those who oppose the civil rights of gay and lesbian Americans will too find themselves on the wrong side of history."

Lambda Legal staff attorney Peter Renn also put out a statement shortly after the hearing, predicting that "the court is likely to deny this motion for what it is: a desperate and dangerous witch hunt for gay judges that comes at the expense of judicial integrity."

Follow further coverage of the hearing on the American Foundation for Equal Rights' website.