Prop 8 Proponents File Motion to Vacate: Judge’s Statements About Sexuality Seen as Grounds for Appeal

Prop 8 proponents have filed a motion to vacate the ruling by Judge Vaughn Walker overturning California's ban on same-sex marriage, saying that the judge's recent statements that he is gay mean he should have recused himself from the case and give them grounds to appeal, the AP reports:


Lawyers for the coalition of religious and conservative groups that put Proposition 8 on the November 2008 ballot… did not raise his sexual orientation as a legal issue.

Pugno said that has now changed because Walker publicly addressed the rumors this month when he told a group of courthouse reporters about his 10-year relationship.


In their anticipated filing, the Proposition 8 lawyers plan to argue that Walker should have removed himself not because he is gay, but because his relationship status made him too similar to the same-sex couples who sued in his for the right to marry.

Walker came out publicly for the first time in early April.

At the time, Walker said he would never think of recusing himself from a case over his sexuality:

Walker, who retired from the bench at the end of February, said it would not be appropriate for any judge's sexual orientation, ethnicity, national origin or gender to stop them from presiding over a case.

"That's a very slippery slope," Walker said.

A docket was filed late this afternoon:

"Docket Text: MOTION to Vacate Judgment filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, – Yes on 8, A Project of California Renewal. Motion Hearing set for 7/11/2011 09:00 AM in Courtroom 5, 17th Floor, San Francisco before Hon. James Ware. (Attachments: # (1) Proposed Order Proposed Order)(Cooper, Charles) (Filed on 4/25/2011)"

American Foundation for Equal Rights (AFER) Board President Chad Griffin released a statement in response:

"This motion is yet another in a string of desperate and absurd motions by Prop 8 Proponents who refuse to accept the fact that the freedom to marry is a constitutional right. They're attempting to keep secret the video of the public trial and they're attacking the judge because they disagree with his decision. Clearly, the Proponents are grasping at straws because they have no legal case."


  1. candideinnc says

    Everyone has a race, a religion, a gender, a sexual orientation, a class that they belong to. If they must recuse themselves from any issue in which their genus is a part, no one can judge. We will have to wait for aliens. Nonsense!

  2. FixItAgainTony says

    Gee… if we lose our fight against Prop 8 at the California Supreme Court, can we have the decision vacated because they’re all straight?

    How frikkin’ stupid.

  3. ams says

    So if he was a straight married man, he would automatically be biased in favor of the Prop 8 supporters? That means that no one but asexuals are qualified to judge cases to do with gay rights of any kind!

  4. breckroy says

    Fascinating precedent they want to set. Right now the highly partisan fight over healthcare has seen the Obama healthcare law ruled against by conservative, Republican appointees…are their verdicts against a liberal president’s liberal policies also impeachable under this logic? Can we vacate every rape case tried by female judge? Custody cases and precedent set by female judges who were also divorced mothers? If Judge Walker had been a pro-marriage activist, or been married during Gavin Newsome’s month of marriages, etc. then I’d say conflict of interest…potentially. The fact that he’s gay and in a long-term monogamous relationship? Errr…not so much.

  5. David says

    Since heterosexuals have historically, predominantly, oppressed GLBTQ people, and because oppressors have a personal stake in continuing oppression – every judgement by any heterosexual against a homosexual, even for traffic fines, should be vacated.

  6. justme says

    This is good news since the denial of this motion will set a precedent. Now we can already be past this point in future cases. One less bit of nonsense is always good.

  7. Gianpiero says

    Oh right. As if their resounding loss had NOTHING at all to do with their shoddy case, their inarticulate and inexpert witnesses, their lack of evidence, or their untenable underlying position. As if a career judge didn’t make his decision on the basis of the evidence presented and on the law, but on some gut feeling and a political agenda.

    What an insult. It’s a misunderstanding and/or a deliberate distortion of how things work. Maybe it’s the high school diplomas of the Prop 8 proponents that ought to be vacated…

  8. Mazeura says

    Had they assumed he was an antisocial, asexual eunich? The stated argument that his relationship status was too similar to the one side would simply flipflop to being too similar to the other side had he been in a heterosexual realtionship. They stated they intentionally did not questing his sexual orientation during the trial. If it wasn’t an issue, why is it an issue?

  9. J. Alan says

    @MAZEURA: Because the proponents of Prop 8 lost. It is sooo difficult to make a decent argument when one is constantly having to climb up on and down off a cross.

  10. I'm Layla Miller I Know Stuff says

    The letter of the law versus the spirit of the law

    The letter of the law versus the spirit of the law is an idiomatic antithesis. When one obeys the letter of the law but not the spirit, one is obeying the literal interpretation of the words (the “letter”) of the law, but not the intent of those who wrote the law. Conversely, when one obeys the spirit of the law but not the letter, one is doing what the authors of the law intended, though not adhering to the literal wording.

    “Law” originally referred to legislative statute, but in the idiom may refer to any kind of rule. Intentionally following the letter of the law but not the spirit may be accomplished through exploiting technicalities, loopholes, and ambiguous language. Following the letter of the law but not the spirit is also a tactic used by oppressive governments.

  11. I'm Layla Miller I Know Stuff says

    Narcissists are generally contemptuous of others. This seems to spring, at base, from their general lack of empathy, and it comes out as (at best) a dismissive attitude towards other people’s feelings, wishes, needs, concerns, standards, property, work, etc. It is also connected to their overall negative outlook on life. ^

    Narcissists are (a) extremely sensitive to personal criticism and (b) extremely critical of other people. They think that they must be seen as perfect or superior or infallible, next to god-like (if not actually divine, then sitting on the right hand of God) — or else they are worthless. There’s no middle ground of ordinary normal humanity for narcissists. They can’t tolerate the least disagreement.

    In fact, if you say, “Please don’t do that again — it hurts,” narcissists will turn around and do it again harder to prove that they were right the first time; their reasoning seems to be something like “I am a good person and can do no wrong; therefore, I didn’t hurt you and you are lying about it now…” –

  12. Brian Miller says

    So let me get this… ehrm… straight.

    They are suing to create a law that “does not recognize homosexuality in any way” — and to do it, they’re demanding that the alleged homosexuality of a judge be recognized (and magnified) to a status that automatically disqualifies him from ruling on the facts of the law?

    That’s logically consistent. (Not).

  13. Zlick says

    To be fair, the Prop 8 Proponents are not claiming Walker is biased because he is gay, but because he has a conflict-of-interest in the outcome of the case – in that he himself might be able to marry his partner if and only if he issued an injunction barring enforcement of Prop 8’s constitutional amendment.

    That’s a fine quibble – but it’s not quite the same as simply saying a gay man can’t rule on a gay rights case.

    And yeah, this is going nowhere. It may be a straw grasp with a hint of reason, but it’s a desperate grasp nonetheless – and one which I can’t see any judge going for.

    It seems the Prop 8 Proponents get stupider by the day.

  14. princely54 says

    Well, to follow their logic, the other side should petition the next, presumably straight judge be disqualified as he/she might have a stake in seeing that NO gays get married. It’s as logical as their silly argument.

  15. LincolnLounger says

    I actually think this is great news. This will backfire badly and expose these idiots for what they are. Public opinion will not be kind, and the 9th Circuit will be a nightmare for them.

  16. Rowan says

    Layla Miller, true dat but right wingers/conservatives also suffer from low integrative complexity and low cognitive dissonance.

    We literally have different ways we think, which is why arguing with each other goes round in circles. They won’t change their mindset as it is deeply rooted on how they analyze or see the world. It’s their thought process.

  17. Pete n SFO says

    Whatever the ruling is, this argument is likely not even aimed at the Courts, but rather, at all the narrow-minded, straight, & religious-types that actually believe that gay people are less-than & really aren’t capable of holding any position in society.

    When they are ruled against, it will become part of their narrative of the decline of America & a future source of fundraising… remember the Courts only make correct decisions, when the decisions are in their favor.

  18. says

    Prop 8 proponents, especially their attorney Anthony Pugno, knew before Walker was even assigned the case that he was gay. They also knew that he had been appointed by a Republican. (Two, actually; his initially appointment by Reagan foundered, but he was reappointed by Bush.) When the Chronicle did a story midway through the trial that mentioned Walker was gay, Prop 8 proponents hinted that they knew all along and flat out said that they didn’t think it would affect the outcome. Now, maybe a distinction could be made that they didn’t know at the time that he was in a relationship and therefore could directly benefit from his ruling. But it could be assumed that even if he wasn’t in a relationship at the moment, he could be in one someday and therefore might someday benefit from it.

  19. Pogo Bock says

    I’ve never known Scalia or Thomas to recuse themselves from cases where they have much more egregious conflicts of interest.

    As I like to say, an activist judge is just a judge whose ruling you disagree with.

  20. Christopher says

    Silly, but this does serve as a reminder that it has been an entire year since this case was heard in court, and what has been the result for us? NADA. Not only can gays not marry in the US, they can’t marry in California even. Nor have the marriages that did take place in CA been given firmer legal status. We’re still in the same hole. Why?

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