Prop 8: Motion to Vacate to Crazytown

The Prop 8 Proponents wish to emphasize that they are not homophobic or anti-gay or hateful. They find the filing of this motion "unfortunate". What's more, they do not base their conclusion of Judge Walker's bias on the fact that he is gay. Rather, it is because he is in a long term, committed gay relationship, thus making him "too similar to the plaintiffs in this case" who wish to marry their long term, committed gay partner. They argue that "if at any time while this case was pending before him, Chief Judge Walker and his partner determined that they desired, or might desire, to marry, Chief Judge Walker plainly had an 'interest that could be substantially affected by the outcome of the proceeding.'”

Prop8 "Might desire"? Some commentators have jumped on the slippery slope bandwagon, comparing the Prop 8 Proponents' view to one that would prevent all women from presiding over an abortion trial. I decline to go that far for the simple reason that the Prop 8 Proponents' bias argument needs no help from me to make it sound ridiculous. Consider these two examples:

Most women would have to recuse themselves from abortion cases, but not pre-pubescent or post-menopausal women and women incapable of having children. They are too dissimilar to the woman seeking to exercise her right to choose what to do with her body. They cannot have children, so they could never "determine[] that they desired, or might desire, to" exercise their abortion rights.

Similarly, they are not saying that no one could ever be a family court judge who sits in judgment of child custody because he or she, at some point, "might desire" to sue a potential future spouse for custody of their potential future child. But, they are saying that no married man or women with a child (or any member of a couple with a child) could ever be a family court judge because "if at any time while" the child custody case "was pending…" the judge and his/her spouse decided "that they desired, or might desire, to" divorce, they would "plainly have an 'interest that could be substantially affected by the outcome of the proceeding.'"

Even without exaggerating and taking the argument for what it is, it is pretty ridiculous to exclude all women of child-bearing age from cases that involve child-bearing women. It is also ridiculous to exclude all black judges from trials involving the exercise of civil rights by African-American citizens.

The argument is also offensive. And, not just to gays. The argument applies to all judges. The notion that judges cannot divorce their personal views from the legal matters before them is offensive, to lawyers and judges and our entire system of justice. When I was in practice, I represented tobacco companies, multi-national corporations and record labels seeking to hoard control over music. I may have disagreed with them, but that does not mean that its purveyors lose the right to representation.

But, the Prop 8 Proponents' argument seems worse. Their argument is not about women or African-Americans or Jews or former prosecutors or any other group that could be prejudiced. Their argument is about gays, a group uniquely vulnerable to insidious stereotypes in common discourse as promiscuous, weak and sex-crazed. No one called Jews money-hungry during the Bernie Madoff scandal, yet mainstream conservatives took to FOX, CNN and MSNBC during the debate to repeal "Don't Ask, Don't Tell" to warn of unit discord, deaths and orgies under the presumption that gay men could not keep their hands off other men. And during every marriage equality debate, gays are the targets of vitriol about disease, selfishness and perversion. Such patently offensive comments were taken as legitimate arguments despite being as illegitimate as other gross stereotypes. We see those stereotypes in this motion to vacate. The motion is based on nothing more than the stereotype that gay men are consumed by their selfish desires, incapable of being professional and incapable of reason.

If these substantive arguments were not enough, the motion to vacate is just bad strategy. It is telling of how desperate the Prop 8 Proponents must be that they are willing to cry bias, an argument that usually offends judges. Absent obvious evidence of a conflict of interest, judges are loathe to have their impartiality — or that of their well-regarded colleagues — questioned. I witnessed this first hand, when, while waiting to deliver an argument in Chicago, Judge Frank Easterbrook, a tough appellate court judge, berated an American Airlines attorney who suggested that a district court judge was biased because he used to represent labor unions in practice 20 years ago. "How dare you," Jude Easterbrook said, "suggest that Judge … was anything but impartial without any evidence. You either reconsider your position or sit right down and hand this case to your associate."

This bad strategy will come back to haunt the Prop 8 Proponents. Already, public opinion is against them. Their substantative arguments are weak. And, if their anti-gay arguments at trial never go public, their homophobia is now a matter of public record. They have proven that Prop 8 and their arguments in defense of Prop 8 are based on nothing more than anti-gay stereotypes. It's ironic: It would take a biased judge for them to win.


  1. Glenn says

    I agree that they will be lucky if Judge Ware doesn’t consider sanctioning them for this filing. He won’t do it, but I expect him to give them an earful.

  2. Matt says

    Lest we forget, Prop 8. lawyers, if Judge Walker has been in a 10 year relationship, then he had ample opportunity to marry in the State of California – or to put it in your terms, ample opportunity to act upon his desire, or potential future desire, to marry his partner. Oh wait, he didn’t.

  3. Austin says

    I agree with the points made in this analysis….but..
    Remember when you first heard about this case….
    Remember when you first heard the judge hearing this case was gay…
    Were you not pleased? Were you not hopefull?
    That somehow his being gay was beneficial to our side?
    Would this case have gone the same way if a lower court equivalent of right wing John Roberts had been the judge?

  4. jpeckjr says

    Undergirding their argument is the bankrupt idea homosexual persons are not, in fact, persons, but somehow less than fully human. That idea underlies all prejudice against those who are different from the ones making the claim. The reason we can’t treat homosexual persons as equal, as having the rights other humans have is, well, they’re not fully human.

    Only white heterosexual men are fully human in their view.

    Ari, once again, thank you for your well-said insights.

  5. John B. says

    Isn’t it one of NOM’s primary talking points that it benefits marriage–meaning of course heterosexual married couples–to prevent same-sex marriage? By this reasoning any heterosexual judge who is, or might want to be, married would also have to recuse himself, as he would stand to directly benefit from a ruling in favor of Prop. 8. Right? Right???

  6. mcNnyc says

    In a court of Law they Loose…but this really is about the election of Judges that the GOP and their Religious Right are aiming for.
    Iowa is a serious issue for our Justice System.

  7. Jay says

    Just a thought: Since Prop 8 proponents were affliated with a religious practice, primarily but not exclusively Catholic or Mormon…

    By the logic of this motion to vacate, wouldn’t it also be imperative that an athiest be appointed as juror over this case? Otherwise, any judge with religious leanings may, in fact, be biased in favor of Prop 8.

    Gosh, I do hate all these slopes with lube on them.

  8. Mikey says

    Wish I shared your optimism. Reality has shown us that many, many, people don’t think of us the same way they think about women, or minorities that “don’t have a choice”, and therefore we are undeserving of the same respect, in court or otherwise.

  9. Tarc says

    It’s great to see such paragons of logic at work! If a judge in this case must be disqualified due to being homosexual, the logical extension is that any similar judge must also be excluded because he is heterosexual – the (false) premise being that a judge is incapable of rational reasonable thought that extends beyond their individualism. In fact, what this says is that the only qualified judge would be a 50/50 bisexual, who would then be unable to rended a judgement from being of a divided mind. (Morons…)

  10. Mikey Mugglesworth says

    Be Careful what you wish for Prop-H8ters: you think taking out a gay judge who may be in favor of gay marriage is a winning strategy???

    Just wait til we call out your desired Straight Judge who’s against gay marriage because of the same conflict of interest argument.

    See? This strategy goes no where. But any money the H8ters spend senselessly from their war chest is a victory for us!


  11. Reg says

    Excellent points John B and MCNNYC.

    I agree with Ari’s post, which is well-reasoned and well-argued. I’d add that if the defendants understood that Walker was gay from the outset – which they did – they could have

    However, I do think that Ari avoided the more difficult question of whether recusal would be required not if Walker *might* wish to marry his partner, but if hypothetically he had disclosed that he wanted to do so.

  12. Glenn says

    I see that Judge Ware just issued an order expediting the hearing on their motion by a month. I do not think this is because he’s eager to grant it, I think it’s because he thinks it’s so obviously without merit and he doesn’t want it hanging out there. I could be wrong, of course.

  13. john D says

    I found all this interesting in that they also protested about Judge Reinhardt being on the appeals panel. Their argument was that he should recuse himself because his wife, Ramona Ripston, is the Executive Director of the ACLU of Southern California. Just to repeat what we should already know, the ALCU/SC was not a party to the Perry case.

    I don’t think Judge Reinhardt even dignified their bluster with a response, as I don’t think it went further than NOM jawing to the media.

    Slightly OT, I found it amusing that in the hearing the judge most likely to be sympathetic to Prop 8 was the least sympathetic on the standing issue (Smith) and the one most likely to agree that Prop 8 is unconstitutional was the most sympathetic on standing (Reinhardt).

  14. says

    @john D: true, that does seem counterintuitive. but it does make sense. conservatives have long been on a crusade to limit standing, keeping plaintiffs out of court, while liberals have always believed in the broadest definitions of who can get through the door. that makes sense. the fewer plaintiffs that get in, the better shot established interests (especially corporate interests) have at winning.

  15. Glen says

    Awful strategy by Prop 8 attorneys. By all reports, Judge Walker was widely respected and liked by his fellow jurists. He served on the bench for over 20 years. And during those two decades of service he no doubt attended conferences with his fellow jurists, ate lunch with them, attended social gatherings with them and had long engaging conversations about any facet of law.

    Do the Prop 8 proponents really think that Judge Walker’s friends and long-time colleagues will take their word over Judge Walker’s word about his ability to be unbiased?

    That’s just foolish.

  16. Randy K says

    Lest we forget;

    The plaintiffs in the prop 8 case had plenty of time to marry in California within the window of opportunity provided to them by a corrupt judiciary just as Walker did, but that did not keep them from coming back after the fact and demand that they be allowed to do so now.

    The time for Walker to reveal is status was prior to his ruling on prop 8 so that a proper discussion could be had, but Walker hid his status from public view until after the fact.

    Considering Walker’s irrational rulings of fact on this subject; vacating Walker’s ruling is necessary…

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