Judge Vaughn Walker, Who Struck Down Prop 8., Speaks Out

Judge Vaughn Walker, who struck down Proposition 8, reflects on the case as SCOTUS prepares to take it up, in a conversation with the Mercury News:

Walker wasn't always so sure the Proposition 8 case would reach the Supreme Court, although he prepared from the outset for that possibility. He notes that the gay marriage debate was at a different juncture in 2009 -- few states had legalized same-sex marriage (nine do now), and President Barack Obama was still several years away from backing same-sex marriage rights in the courts.

"It was a different time, and the Supreme Court doesn't always get out in front of public opinion," Walker said. "Not that many cases go to the Supreme Court."

Over the objections of Proposition 8 backers, Walker ordered a full trial to establish a complete record on the arguments from both sides, aware the higher courts would review whatever he decided. "If you are going to have an issue that deals with a significant constitutional matter, it pays to have some facts that are established the old-fashioned way," he said.

But, to Walker's surprise, after lawyers for same-sex couples put on a parade of witnesses, gay marriage foes put on scant evidence, offering just two witnesses, including one who later came out in favor of same-sex marriage rights. "I did think the proponents of Proposition 8 would put on a case," Walker said.

"It never occurred to me that they would ... ," and his trademark baritone trails off. Walker asks for the correct baseball term for taking a swing and a miss at a pitch and then just shrugs.

And whiff they did.

Legalizing Gay: The Judges

BY ARI EZRA WALDMAN

To celebrate Pride 2012 and to honor the great civil rights and political successes we have earned recently, I would like to offer a series of columns on the lawyers, advocates, scholars, and individual leaders who have sacrificed so much, developed novel legal arguments, and won the legal victories upon which we stand today. It is impossible to include everyone; an entire life's work would fail to honor all of our forefathers. But these few representatives symbolize the contributions of the greater whole: a group of men and women, young and old, who have sacrificed so that we can live a life of freedom today. In today's column, the judges.

Fair and scholarly judges cross racial, ethnic, party, religious, and socioeconomic lines; no one has a monopoly on the ability to interpret the law and issue a just decision. And although it is only natural that almost every progressive federal court decision advancing the cause of gay rights has come from a straight judge, our community's quest for honor, dignity, and equality is aided by the integration of openly gay judges on the federal bench. It is not that gay judges will make progay decisions; rather, brilliant legal minds who happen to be gay help demystify "gayness" for other judges and legitimize gay contributions to American society.

Recently, openly gay lawyers Michael Fitzgerald (top, right), Paul Oetken, (right) and Alison Nathan (top, left) won Senate confirmation to district court benches in California and New York. All three judges are incomparably smart and eminently deserving of their elevation, and conservatives and liberals in legal circles expect them to be unassailable, fair, and honorable judges. Their path was made possible by more senior judges, the Honorable Deborah Batts -- an African-American lesbian -- and the recently-retired Judge Vaughn Walker -- the gay man at the helm of the Perry v. Brown trial. Judges Batts and Walker came out after they were confirmed to the bench, but without that progress, confirming 
openly gay judges would never have been possible. 

Continued... AFTER THE JUMP.

Here's VIDEO of Last Week's Prop 8 Hearings

Miss last week's hearings in the Proposition8 case? They were likely the last ones before the Court rules on the case, and dealt with the unsealing of trial videotapes and efforts to vacate Judge Vaughn Walker's decision overturning Prop 8, because Walker is gay.

Watch full video of the hearings, AFTER THE JUMP...

And in case you missed it, our legal expert Ari Ezra Waldman's analysis is HERE.

Prop 8's Second Date with the Ninth Circuit

BY ARI EZRA WALDMAN

It has literally been and up-and-down relationship for Proposition 8, California's ban on same-sex marriage, and the San Francisco-based Ninth Circuit Court of Appeals. Thursday marked the second time the American Foundation for Equal Rights (AFER) and its legal team, along with the Prop 8 proponents, ProtectMarriage, argued before the appeals court. And, it is hopefully the last.

After Judge Vaughn Walker declared Prop 8 unconstitutional, a three-judge panel consisting of Judges Stephen Reinhardt, Michael Hawkins, and N. Randy Smith heard arguments on the merits of that ruling and on the right of Prop 8 proponents to appeal it in the first place. As we all know, the panel's decision was delayed over a year while we waited for the California Supreme Court to interpret a question of state law. While we are still waiting for the Ninth Circuit's ultimate opinion, Prop 8 came back to Judges Reinhardt, Hawkins, and Smith on Thursday to discuss the release of the trial videotape and the proponents' motion to vacate the lower court's decision.

I have argued here that releasing the videotapes is a tough sell as a matter of law, much more so than the slam dunk victory awaiting AFER, Ted Olson, and David Boies on the issue of vacation. Let's take the easy one first. In short, the Prop 8 proponents' rabidly anti-gay argument that Judge Vaughn Walker's decision should be thrown out because he was, at the time of the Perry trial, in a long-term relationship with another man, and thus could be not be impartial on the issue of same-sex marriage, strikes at the very heart of the independent judiciary. It presumes that judges' personal views necessarily infect their professional conduct, which not only flies in the face of reason, but contradicts a tenet of Anglo-American law since the Norman invasion. It also is blatantly discriminatory: if Judge Walker had to recuse himself from a gay marriage case because he could have possibly wanted to marry a man in the future, would all heterosexuals have to recuse themselves from divorce proceedings? Would all African-Americans have to recuse themselves from civil rights cases? The Prop 8 proponents would either have to say YES and be laughed at, or say NO, and admit that they just hate gays.

Releasing the videotapes -- records created by and kept by Judge Walker for his use in chambers -- is a good idea, but a tough call on the law. My previous argument noted that, for better or for worse, we usually make public a trial transcript, but do not normally televise or release video of trials; therefore, any motion to do so requires special justification. Releasing the videotapes would be transcript plus, so we would need a sufficient reason for tack on the plus. However, attorneys for the various media outlets supporting release have argued that the Prop 8 proponents have to offer specific reasons why the tapes should not be released, suggesting that keeping the tapes under wraps is a special departure from the norm requiring justifications. The policy arguments favoring release are extraordinarily strong, but that does not mean the law is on our side.

The Ninth Circuit is now poised to issue a comprehensive decision addressing the motion to vacate, the videotapes, standing, and, perhaps, even the merits. At least with respect to the first two tertiary issues, the Ninth Circuit is most likely to toss the motion to vacate and deny the motion to release the videotapes. Still, that half-victory will be sweet enough, as the court should also uphold Judge Walker's monumental ruling declaring marriage discrimination unconstitutional.

Continue AFTER THE JUMP for a discussion of what happened at the Ninth Circuit on Thursday, where both sides argued the motion to vacate and the motion to release the videotapes.

Prop 8 Supporters Again Try To Boot Judge Vaughn Walker

Man, oh man! Those anti-gay Proposition 8 activists just won't quit trying to discredit Judge Vaughn Walker's ruling that the ballot measure goes against the constitution.

Yesterday, before the 9th U.S. Circuit Court of Appeals, an attorney for the marriage ban's backers again argued that Walker should have recused himself because he's gay.

"[Walker] knew that he, too, like the plaintiffs, was a gay resident of California who was involved in a long-term, serious relationship with an individual of the same sex," said the group's lawyer, Charles Cooper. "The litigants did not have any knowledge of these facts, and it appears that Judge Walker made the deliberate decision not to disclose these facts.”

The appeals court was not impressed.

Read more, AFTER THE JUMP...

Ninth Circuit Consolidates Prop 8 Cases Seeking to Overturn Judge Vaughn Walker's Ruling

The Ninth Circuit Court of Appeals, in hopes to expedite rulings on California's ban on same-sex marriage have consolidated two cases involving Proposition 8, Lyle Denniston at the SCOTUS blog reports:

In a brief order, a three-judge panel consolidated cases that both carry the case title Perry, et al., v. Brown, et al. (Circuit dockets 10-16696 and 10-16577).   Both are challenges, but for different reasons, to a federal District Judge’s ruling in August 2010 nullifying the ballot measure adopted by the state’s voters in 2008.

Adds Denniston:

One of the appeals is a plea to overturn the Walker decision on the merits (docket 10-16696).  The other (docket 11-16577) is also an attempt to overturn Walker’s ruling, but with the argument that he should have disqualified himself from ruling on the case — and that, as a result, his ruling must be vacated — because he was not an impartial judge.   The second challenge is based on two facts and a theory.  The facts are that he is a gay person and that he has been in a long-term relationship with a partner of the same sex.  The theory is that he would likely be interested in marrying his partner, and thus would benefit from his own ruling against the marriage ban.

The judge who succeeded Walker on the case, Chief Judge James Ware of San Francisco, has rejected the claim of partiality.

Both cases involve appeals by the sponsors and promoters of Proposition 8.   Those backers, as well as the same-sex couples who had challenged the ban, had told the Circuit Court that they were in favor of consolidating the two cases, so long as it did not result in a delay in the Circuit Court’s review.   By agreeing to consolidate the two proceedings, the Circuit Court at least implied that there would be no delay by going forward with them together.

It's expected the court will move quickly on a ruling.