Judge Walker

[frankenstein]

"Rumors that Walker was gay and had a long-term partner who accompanied him to social functions circulated during the 13-day trial that preceded his decision and after he handed it down. The judge declined to comment at the time.

Members of the Proposition 8 team openly complained about Walker's handling of the case and accused him of favoring the same-sex couples who had sued in his court for the right to marry. But they refrained from raising the specter of the judge's sexual orientation, ..."

And here is where Clemens comes in, rumor etc, is not grounds for recusal, but there is nothing to that prevents a litigant from asking a judge a question based on rumor, this could even be done in chambers with the other party present.

There is a difference between recusal being required and asking a judge if the judge is impartial.

[Mordecai]

The fact that Dictator Wa... er... Judge Walker admitted that he never even considered recusing himself strongly condemns him as being completely and utterly biased and therefore unfit to judge.

[Mordecai]

The ongoing "Save Traditional Marriage!" camp is, IMO, decending into absurdity in trying to sound convincing that anyone's "marriage" is really "being preserved," here.

Strawman. The idea is to preserve the traditional concept of marriage in the long run. It's not about individual marriages.

[frankenstein]

The fact that Dictator Wa... er... Judge Walker admitted that he never even considered recusing himself strongly condemns him as being completely and utterly biased and therefore unfit to judge.

Should Judge Smith - 9th Circuit panel - recuse, being that The LDS Prophet instructed all members to support prop 8; doesn't that make a LDS judge biased and unfit to hear the case?

Doesn't a heterosexual married Judge have just as much as stake i.e. the judge must protect his own marriage, therefore the judge is unfit to hear the case?

[Daniel2]

Strawman. The idea is to preserve the traditional concept of marriage in the long run. It's not about individual marriages.

So, like the Pro-Prop 8 side revealed in court, you also admit that allowing same-sex couples to civilly marry does not harm anyone's marriages.

It's also your view that the movement to prevent same-sex marriage "isn't about individual marriages," at all--and any discussion about that aspect is a "strawman."

So........ the core of your argument is that it's ok to prevent individual couples (who obviously would benefit from being able to marry) from marrying each other on the basis that "marriage" itself, as a concept, will be harmed, even though no actual marriages will be harmed...

This is just another example of the anti-gay-marriage side's arguments decending into absurdity, IMO.

I would submit that, as Jesus taught about the Sabbath, 'civil marriage' was made for man, and not man for 'civil marriage,' and that when speaking of allowing both opposite-sex and same-sex couples equal civil marriage rights, we should "render unto [the government] that which is [the government's], and render to [religion] that which is [religion's]."

Consider the following two sources' vastly divergent definitions of the same term, Endowment:

• Law and Legal Definition: "An endowment is a permanent fund of property or money established to benefit an institution or person. It has a specific purpose defined for which the income derived from the money or property is to be applied. In an endowment fund, the principal is invested, and only a portion of the investment earnings is spent. The rest of the earnings are directed back into the fund, so that the endowment grows over time. In this manner, the endowment becomes a perpetual source of funding for whatever the donor wishes to achieve."
  
• LDS Prophet, Brigham Young: "Let me give you a definition in brief. Your endowment is to receive all those ordinances in the house of the Lord which are necessary for you, after you have departed this life, to enable you to walk back to the presence of the Father, passing the angels who stand as sentinels, being enabled to give them the keywords, the signs and tokens, pertaining to the holy priesthood, and gain your eternal exaltation in spite of earth and hell." (Discourses of Brigham Young, selected by John A. Widtsoe, Salt Lake City: Deseret Book Co., 1941, page 416.)
  

Clearly, the civil definition of "endowment" is radically different from the LDS Church's definition of "endowment." And yet, there is no conflict between the LDS church and United States Government about each using the same term to describe either a highly-sacred, deeply-personal, religious contract, on the one hand, vs. a purely secular, public, and strictly financial contract, on the other. There are no proposed state or federal constitutional ammendments to prohibit the government from using the word "endowment," or to preserve the "traditional meaning and sacred nature of the endowment."

So far as the term "endowment" is concerned, Mormons don't feel the need to challenge the State, or prohibit or proscribe the State's use of the term--despite the fact that the LDS endowment is a religious contract that LDS members believe is so sacred that its contents cannot be fully shared with non-worthy Latter-day Saints, or even for civil ceremonies that the LDS Church considers to be of a lesser, non-eternally-binding nature. After all, Mormons believe that civil marriages between non-Mormon couples or even for Mormon couples married outside the temple are "for Time," only. Marriage, while certainly no less 'sacred' than the endowment, is not so sacred that it's wording and content cannot be fully shared with non-Latter-day Saints; as I just mentioned, alternate, less-bindingly-authoratative versions of 'marriage' are performed outside of LDS temples.

If "lesser" (in the sense of non-eternal) forms of 'marriage' can be freely shared by Mormons, in purely civil sense, outside of the authority and sacredness of their temple walls; and civil words (like "endowment") are understood by Latter-day Saints to be something separate and distinct from their own sacred ordinances, presumably without diluting or confusing what "The LDS endowment" means, why aren't Latter-day Saints capable of "rendering that which is Caesar's" (referring to civil marriage) unto Caesar, and rendering unto God (Mormon's Celestial marriages, performed exclusively in their temples and only for those members that are worthy to enter therein---even among straight couples!) that which is God's...?

Darin

[Mordecai]

Should Judge Smith - 9th Circuit panel - recuse, being that The LDS Prophet instructed all members to support prop 8; doesn't that make a LDS judge biased and unfit to hear the case?

As I said, the fact that Dictator... er.. Judge Walker didn't consider recusing himself is pretty indicative of his inability to be impartial. If Judge Smith doesn't consider recusing himself, that's a very strong indicator that he's not even bothering to try to be impartial.

[Mordecai]

So, like the Pro-Prop 8 side revealed in court, you also admit that allowing same-sex couples to civilly marry does not harm anyone's marriages.

I don't think it will harm marriages right now. My position is that it will be harmful to marriage in the future. The argument is largely that the gov't shouldn't adopt an obviously false dogma, i.e. that a gay union is the same as a straight union. Pretty straightforward.

So........ the core of your argument is that it's ok to prevent individual couples (who obviously would benefit from being able to marry) from marrying each other on the basis that "marriage" itself, as a concept, will be harmed, even though no actual marriages will be harmed...

No one is preventing anyone from marrying. How many times do I have to explain such a simple concept? Gay people can "marry" all they want. That the gov't doesn't call them "married," doesn't mean they aren't. Virginia didn't call the Lovings married, but the Lovings were "guilty" of being married nonetheless. If you think that a gay union is the same as a heterosexual union, then it follows that a gay couple living together "as husband and wife" with legal recognition is married. No one is being arrested for doing this. I promise. No one is stopping gay people from living their lives as they see fit. There is no gov't oppression here, no discrimination and no segregation.

I would submit that, as Jesus taught about the Sabbath, 'civil marriage' was made for man, and not man for 'civil marriage,'

Marriage was made for man by God, which is why man has no right to distort what it was that He actually created.

...when speaking of allowing both opposite-sex and same-sex couples equal civil marriage rights, we should "render unto [the government] that which is [the government's], and render to [religion] that which is [religion's]."

They do have equal "marriage" rights. Also, we should render to the government what is the government's. But the question is, what is the government's? Does marriage belong to the gov't, or are they merely regulators of it? I suggest that their role is the latter, so they have no right to usurp the role of religious authority on what a marriage actually is. Marriage, as it has been traditionally known, comes from Nature. It is not an artificial construct, created by man and as such, the gov't has no right to put itself above Nature by distorting what marriage is and is not.

Clearly, the civil definition of "endowment" is radically different from the LDS Church's definition of "endowment."

This isn't a debate about "separation of Church and state," as I've explained repeatedly. That's not in the Constitution anyway, so it's a moot point, unless you accept the dictator status given to judges by judges. This is a debate over whether the gov't should be playing the role of thought police and language police. They have no such right.

And yet, there is no conflict between the LDS church and United States Government about each using the same term to describe either a highly-sacred, deeply-personal, religious contract, on the one hand, vs. a purely secular, public, and strictly financial contract, on the other.

For obvious reasons, this is a false analogy. Do I need to explain why this is a false analogy? Really? I've made this argument before for "gold Visa" cards or bows that you tie and bows with which you shoot arrows.

The simple truth is that this has no effect on the English language, doesn't create confusion and doesn't represent top-down manipulation of the English language/American law, because the terms are used in such profoundly different contexts. Context is pretty important in interpreting language. If I say, "I took out my bow and shot an arrow," no one gets confused about bows that you use in wrapping gifts, do they? Obviously, context makes a great deal of difference, which is why this is a false analogy.

The gov't doesn't even acknowledge the existence of our temple endowments, but if they did, and they had laws written relating to it and then started calling Little League baseball, "an endowment," and started treating it like they treat our endowments, solely because of the political correctness of treating Little League baseball as if it is as special as our endowments, I would have a serious problem with such a power grab. The "endowment equality" proponents could cry and scream and threaten to commit suicide, go on and on about discrimination and civil rights, and I'd still see it as an attempt to grab more power for Little League baseball. Hardly an example of a civil rights movement, not unlike changing the name of gay unions.

[Amulek]

"Rumors that Walker was gay and had a long-term partner who accompanied him to social functions circulated during the 13-day trial that preceded his decision and after he handed it down. The judge declined to comment at the time.

Members of the Proposition 8 team openly complained about Walker's handling of the case and accused him of favoring the same-sex couples who had sued in his court for the right to marry. But they refrained from raising the specter of the judge's sexual orientation, ..."

Yes, “they refrained from raising the specter of the judge's sexual orientation, saying media reports and gossip were an unsound basis for legal strategy [Emphasis added].” Again, that sounds quite right to me.

And here is where Clemens comes in, rumor etc, is not grounds for recusal, but there is nothing to that prevents a litigant from asking a judge a question based on rumor, this could even be done in chambers with the other party present.

There is a difference between recusal being required and asking a judge if the judge is impartial.

And there is also a difference between saying that litigants could have made such an inquiry – again, based solely upon rumor – and saying that litigants have an obligation to do so. The latter is what you were claiming, and I believe you are mistaken on that point.

[frankenstein]

And there is also a difference between saying that litigants could have made such an inquiry – again, based solely upon rumor – and saying that litigants have an obligation to do so. The latter is what you were claiming, and I believe you are mistaken on that point.

the proponents had a duty, see motion page number 8 lines 24 - 26:

See Liljeberg, 486 U.S. at 868 (emphasizing the importance of “encouraging a … litigant to more carefully examine possible grounds for disqualification and to promptly disclose them when discovered”);

[Zeta-Flux]

Modecai, stay on topic.

---------------------------------------

It comes as no surprise to anyone that I believe that a judge's sexual orientation and relationship-status should not be reason enough to excuse a judge from ruling over a case such as this.

Actually, this surprises me quite a bit. Are you saying that if Judge Walker wanted to marry his long-term partner, he would have had no conflict of interests in presiding over the case? His relationship status seems (beyond doubt) to be key in understanding whether or not a rational person would see him as uninterested in the end result.

[cdowis]

So, like the Pro-Prop 8 side revealed in court, you also admit that allowing same-sex couples to civilly marry does not harm anyone's marriages.

Perhaps it does not harm an individual marriage, but it has the potential to do irreparable damage to the institution of marriage, and society itself.

A specific example.... We have an interstate highway that goes thru a rural area. Almost no offramp for a hundred miles.

Now, someone decides to build a home off the interstate and to build a driveway connecting his property to the freeway. Who does it harm? He has almost no neighbors, and seldom uses his "personal offramp" to his home.

I think it would be obvious that the government would stop him from doing this, even if it does not "hurt anyone" to have a personal driveway on the interstate in his particular locale.

If he is allowed to do so, then others will attempt to show that they also do not hurt anyone, and the concept of an interstate would be gone. And how would that impact the economy as we dismantle, piece by piece, the interstate highway system. What is the ultimate impact on our modern society.

Once we open the system up to private access roads, it changes the whole nature of things, and it is unlikely that we can "put the toothpaste back in the tube", regardless of the consequences.

Marriage has been defined between man and woman from the beginning of history, in all cultures. Including such liberal cultures as the Greeks, who openly practiced homosexuality. Now there are those who want to experiment with a fundamental, basic foundation of society itself, with no regard of the potential consequences, not only in the immediate future, but also over several generations.

[Amulek]

the proponents had a duty, see motion page number 8 lines 24 - 26:

See Liljeberg, 486 U.S. at 868 (emphasizing the importance of “encouraging a … litigant to more carefully examine possible grounds for disqualification and to promptly disclose them when discovered”);

Um, that’s talking about a duty to act upon discovery – which is exactly what they are doing. You, however, were talking about them having an obligation to go on investigative fishing trips and call a judge’s impartiality into question based solely upon rumor and speculation. Sorry, but that sort of behavior is not supported by what you just quoted.

It is incumbent upon judges to disclose any potential conflicts of interest to the parties involved. I assume you are aware of that already though, seeing as how you edited that little bit out of the citation you just provided.

[california boy]

I thought it might be interesting to some of you to get at least one persons legal view on this filing. it is interesting how he feels the filing might actually hurt the yes on 8's position. Personall I feel the case will move forward and ultimately be decided by the Supreme Court.

ARI EZRA WALDMAN

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

As an Easter/Passover/Mid April present to the gay community, two of our opponents in the quest for equality played their hands. And, it looks like they're holding a pair of threes. Republicans will pay (now former) King & Spalding partner Paul Clement a hefty hourly rate to defend the almost laughably indefensible Defense of Marriage Act (DOMA) and the Prop 8 Proponents want Judge Vaughn Walker's decision declaring Prop 8 unconstitutional vacated -- or, annulled, set aside, rendered void, tossed into the trash heap -- because they just realized one of the longest serving gay federal judges is gay. Today, I would like to talk about the Prop 8 Proponents' motion to vacate.

On April 25, proponents of Prop 8 -- who are still waiting to hear if the California Supreme Court will decide that California law allows citizen initiative proponents to defend their project in court (as we have discussed, a necessary, but insufficient requirement for standing in a federal court) -- filed a motion with the Ninth Circuit to vacate Judge Walker's ruling striking down Prop 8. They argue that because Judge Walker is, and was at the time he presided over Perry, in a long term gay relationship, he was biased in favor of allowing gay couples to marry. After all, the argument goes, he's gay, has a partner and may want to get married if he could.

The problem with this argument is that it is patently offensive, miles south of ridiculous and worse still, just bad strategy. Let's discuss how AFTER THE JUMP...

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.'”

"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.

[frankenstein]

Um, that’s talking about a duty to act upon discovery – which is exactly what they are doing. You, however, were talking about them having an obligation to go on investigative fishing trips and call a judge’s impartiality into question based solely upon rumor and speculation. Sorry, but that sort of behavior is not supported by what you just quoted.

It is incumbent upon judges to disclose any potential conflicts of interest to the parties involved. I assume you are aware of that already though, seeing as how you edited that little bit out of the citation you just provided.

the early articles of this story indicated that the attorneys knew of his sexual orientation but did not make an issue of till recently. the litigants duty is to "more carefully examine POSSIBLE grounds", they could have requested a closed session or a meeting in chambers to ask the judge "are you homosexual, do you have partner, and do you two want to be married, lastly will you recuse"

and yes, I left out the part about the judge in the quote, and I did that for a very good reason, that reason is expressed by yours and many others unwillingness to accept that a litigants has a responsibility aswell.

-----------------

that the attorneys knew and did nothing, was most likely a calculated event, they use his homosexuality and the rulings the Judge made as evidence of biased. like others have stated they are grasping at straws. that the Judge sought to allow cameras with first seeking approval of SCOTUS is not evidence of biased, that the judge saw the difference between a right being granted then that right being taken away by popular vote is not evidence of biased.

and by raising this motion, they have excluded any and all judges who are married or have ever expressed a desire to be married, whether homosexual or heterosexual.

[Daniel2]

I thought it might be interesting to some of you to get at least one persons legal view on this filing. it is interesting how he feels the filing might actually hurt the yes on 8's position. Personall I feel the case will move forward and ultimately be decided by the Supreme Court.

Great post, California Boy. Thanks for sharing.

Zeta-Flux, the analysis CB posted pretty much speaks to my feelings about your comment that:

Actually, this surprises me quite a bit. Are you saying that if Judge Walker wanted to marry his long-term partner, he would have had no conflict of interests in presiding over the case? His relationship status seems (beyond doubt) to be key in understanding whether or not a rational person would see him as uninterested in the end result.

Darin

[Daniel2]

This just in... The court is granting a hearing on June 13th to consider Prop 8's Defender's motion to vacate judgement due to his long-term partner:

Just found out that there will be an expedited hearing on their motion held in the courtroom of Judge James Ware, United States District Chief Judge on June 13. Here's the notice:

Pursuant to Fed. R. Civ. P. 62.1(a), Defendant-Intervenors’ have filed a Motion to Vacate Judgment. (See Docket Item No. 768.) Defendant-Intervenors have requested a hearing on July 11, 2011. Due to the nature of the Motion, the Court finds good cause to expedite and specially set a hearing on the Motion. Accordingly, the Court advances the hearing to June 13, 2011 at 9 a.m. The parties shall comply with the following briefing schedule:

(1) On or before May 13, 2011, any party desiring to do so, shall file their Opposition to the Motion;

(2) On or before May 23, 2011, any party desiring to do so, shall file their Reply. In their papers, the parties shall address the specific procedural posture of this case and how the Court should dispose of this Motion under Fed. R. Civ. P. 62.1(a).

And a bit more, here:

Prop. 8 video flap goes to Walker's replacement

Bob Egelko, Chronicle Staff Writer

(04-27) 17:30 PDT SAN FRANCISCO -- San Francisco's new chief federal judge now must decide whether his predecessor can keep the video recordings of the trial over California's ban on same-sex marriage - and whether he should have disqualified himself from presiding over that trial.

Sponsors of Proposition 8, the 2008 initiative that outlawed gay and lesbian weddings, had asked the Ninth U.S. Circuit Court of Appeals in San Francisco to confiscate the videos from former Chief U.S. District Judge Vaughn Walker.

They argued that Walker had defied a U.S. Supreme Court ruling and violated his own court's regulations by showing a three-minute excerpt of the trial during a speech in February, shortly before he retired from the bench. The high court had prohibited Walker from airing the videos during the trial in January 2010.

Gay-rights advocates and media organizations countered by asking the appeals court to make the videos public. On Wednesday, the court referred the dispute to Judge James Ware, who succeeded Walker as chief judge and inherited his cases.

Walker ruled in August that Prop. 8 discriminated unconstitutionally on the basis of sexual orientation and gender. The measure's sponsors have appealed that ruling and opened a new front Monday by claiming that Walker had a personal stake in the case, based on his post-retirement confirmation that he is a gay man with a longtime partner.

Ware set an expedited schedule Wednesday on that dispute, with a hearing on June 13.

E-mail Bob Egelko at begelko@sfchronicle.com.

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/04/27/BA011J8UCI.DTL#ixzz1Kpox5GaI

Darin

[Amulek]

the early articles of this story indicated that the attorneys knew of his sexual orientation but did not make an issue of till recently.

Probably because, despite the attempts of some to characterize it differently, his sexual orientation – in and of itself – isn’t an issue. As conservative legal beagle Ed Whelan notes:

The proposition that a judge should not decide how the law in the jurisdiction he lives in would directly govern his own individual rights on a matter that a reasonable person would think was very important to him personally is much narrower than the proposition that a judge of a particular sexual orientation, ethnicity, national origin, or gender may not decide any case involving those issues. The former proposition flows directly from section 455(a); the latter doesn’t.

the litigants duty is to "more carefully examine POSSIBLE grounds", they could have requested a closed session or a meeting in chambers to ask the judge "are you homosexual, do you have partner, and do you two want to be married, lastly will you recuse"

Maybe you’re an attorney and know better than me, but I really don’t think that is how it works. Consider the following story that was posted earlier by california boy:

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."

Now, if I understand you correctly, this can’t be right because – as you say – mere rumor and speculation is all it takes to question a judge’s impartiality. Litigants are duty bound to do this sort of thing. But this guy is making it sound like that’s actually not good enough – like judges expect lawyers to provide actual evidence before even suggesting such a thing.

and yes, I left out the part about the judge in the quote, and I did that for a very good reason, that reason is expressed by yours and many others unwillingness to accept that a litigants has a responsibility aswell.

The only thing I have been unwilling to accept is that the litigants in this case had an obligation to question the judge’s impartiality based solely upon rumor, suspicion, etc. As was mentioned earlier, the default position is that judges aren’t biased (see e.g. American Textile Mfrs. Inst., Inc. v. The Limited, Inc., 190 F.3d 729, 742 (6th Cir. 1999), quoted previously).

Oh, and for what it’s worth, I don’t actually think that the Prop 8 lawyers will be successful in getting the judgment vacated. The bar to disqualify a judge from a case is really quite high. In fact, there was a case here in Texas recently where a man was sentenced to death, and it was later discovered that the prosecutor and the presiding judge had previously been involved in an affair. Long story short – he didn’t get a mistrial.

[Zeta-Flux]

Darin,

I read the article, but didn't find it persuasive myself. So let me ask two simple follow-up questions.

If in fact Judge Walker did, during the trial, want to eventually marry his long-term partner, would that be grounds for vacating his decision and retrying the case?

If a women judge was sitting on a case concerning the constitutionality of abortion laws in her state, and she was pregnant at the time and considering an abortion, would that necessitate her recusing herself? What if she was not considering an abortion, finding such a thought disgusting--would her situation (thinking of abortion in terms of her unborn child) give the other side grounds for requesting her recusal?

The article's premise seemed to be that one shouldn't prevent a judge from sitting on a case which he might eventually care about (e.g. a women who may one day want to get an abortion); but I think that misunderstands the fact that there was a *present* reason for supposing Judge Walker was biased. Those reasons are spelled out in Judge Walker's very decision, explaining the benefits of marriage as extended to same-sex couples (in his *own* *present* view).

[cdowis]

the early articles of this story indicated that the attorneys knew of his sexual orientation but did not make an issue of till recently.

The issue is not his sexual orientation alone, but his long-standing relationship with a same sex partner, which is the whole issue behind of Prop 8, over which he presided and gave a legal opinion.

The issue is not so much bias based on his sexual orientation, but whether he potentially has a *personal* interest in the outcome.

You can go back to sleep now.

[Pahoran]

I thought it might be interesting to some of you to get at least one persons legal view on this filing. it is interesting how he feels the filing might actually hurt the yes on 8's position. Personall I feel the case will move forward and ultimately be decided by the Supreme Court.

It certainly makes for interesting reading:

As an Easter/Passover/Mid April present to the gay community, two of our opponents in the quest for equality played their hands.

"Present to the gay community" -- the timing was malicious, or heartless, or something. "Our opponents" -- guess which side he's on. "Quest for equality" -- loading the dice by defining the dispute in "gay" terms.

the almost laughably indefensible Defense of Marriage Act (DOMA)

Thank you for that impeccably professional and thoroughly impartial legal opinion.

Regards,

Pahoran

[Stargazer]

Also, your judgments are completely off base. They never say "he never denied it so it must be true". You need to read the actual motion and respond to what they actually say if you don't want to be just presenting straw-man caricatures.

Well, I have never denied that I am Amelia Earhart, so I must be her.

[Jaybear]

The issue is not his sexual orientation alone, but his long-standing relationship with a same sex partner, which is the whole issue behind of Prop 8, over which he presided and gave a legal opinion.

The issue is not so much bias based on his sexual orientation, but whether he potentially has a *personal* interest in the outcome.

You can go back to sleep now.

Its a very weak argument. The issue will be heard by the court. The motion will be denied. And, no doubt, those who find the argument compelling will blame the loss to political correctness.

But it is enjoyable to see those who come here pretending that their opposition to gay marriage is not driven by biblical animus towards gays, but out of sincere concern for preserving the institution of marriage effectively admit that heterosexual judges have no personal interest in the outcome of the ruling.

[Jaybear]

The issue is not his sexual orientation alone, but his long-standing relationship with a same sex partner, which is the whole issue behind of Prop 8, over which he presided and gave a legal opinion.

The issue is not so much bias based on his sexual orientation, but whether he potentially has a *personal* interest in the outcome.

You can go back to sleep now.

Its a very weak argument. Those who think otherwise, are simply displaying their own personal bias. The motion will be heard by the court. The motion will be denied. And, no doubt, those who find the argument compelling will blame the loss to political correctness.

But it is enjoyable to see those who come here pretending that their opposition to gay marriage is not driven by biblical animus towards gays, but out of sincere rational concern for preserving the institution of marriage effectively admit that heterosexual judges have no personal interest in the outcome of the ruling.

[Amulek]

Its a very weak argument. The issue will be heard by the court. The motion will be denied. And, no doubt, those who find the argument compelling will blame the loss to political correctness.

I think the motion has some merit, but I agree that it is unlikely to succeed. As I mentioned before, the bar requiring a judge to recuse himself from a case is really quite high. Still, I have no doubt that - should it fail - those on the other side of the argument will be more than happy to politicize the outcome as well.

[Zeta-Flux]

Its a very weak argument. Those who think otherwise, are simply displaying their own personal bias.

Ah, Jaybear. I suppose that the blogger at http://ethicsalarms.com/2011/04/28/6094/ is merely "displaying [his] own personal bias."