Prop 8: Judge’s Questions Suggest Loss For Anti-Marriage Equality Group

Monday’s Prop 8 trial to determine whether or nor federal judge Vaughn Walker was obligated to recuse himself because he is in a long-term same-sex relationship, appears, based upon Chief Judge James Ware’s questions and comments, to be a loss for the anti-gay marriage group, “Protect Marriage,” which claims he was.

Questions of race, gender, and religion as legitimate bases for recusal were asked and answered, all in the negative, including by Protect Marriage.

READ: Prop 8: Back in Court Today To Prove Being Gay Isn’t Reason To Throw Out A Case

Calling Protect Marriage’s motion at various times “frivolous,” “offensive,” and “deeply unfortunate,” Theodore Boutrous Jr., attorney for the American Foundation for Equal Rights (AFER), told the judge “This ploy has been used throughout history,” and cited historic desegregation cases.

Chief Judge James Ware, who happens to be African-American, asked Charles Cooper, attorney for Protect Marriage, if, based upon Cooper’s argument that a gay judge cannot decide case of same-sex marriage equality, a reasonable person could require recusal of a black judge from a civil rights case. Cooper answered, “no.” Ware also disclosed that when same-sex marriage had been legal in California, he had presided over a same-sex marriage.

Ware, who took Walker’s seat as Chief Judge upon Walker’s retirement, posed several questions, including asking if a judge who has been a sexual assault victim would be required to disclose her victim status in a case regarding rape.

Later, towards the end of the session, Judge Ware classified Cooper’s defense as “struggled.” Judge Ware also stated, “You can’t simply assume that a judge who takes an oath to uphold the law and judge fairly is incapable of doing so.” Ware also added, “What fact would you cite to the court that Judge Walker had an interest in changing his relationship [into a marriage]? … to say that he maintained a long-term relationship doesn’t put him in the shoes of what the plaintiffs were doing.”

Boutrous told Ware, “The proponents of Prop 8 are unreasonable. No reasonable person would call into question a judge’s impartiality because of their gender,” adding, “They [Protect Marriage] don’t have a single case that supports them.They don’t have single case that suggests disclosure should have been made here.”

Boutrous also said Protect Marriage had an obligation to “look Judge Walker in the eye,” and discuss recusal, not wait until after his retirement. Walker retired earlier this year, a few months after he decided the Prop 8 case.

Also making clear Protect Marriage’s real issue, Boutrous stated that Protect Marriage’s “motion is targeting Judge Walker’s sexual orientation. No matter how they try to camouflage it and dress it up.”

“The Proponents of Prop. 8 today advocated for a sweeping and completely unsupported standard for disqualification that would preclude hundreds of qualified, fair-minded judges from deciding some of the most important issues facing our country,” said Theodore J. Boutrous Jr., counsel for AFER. “Their standard is intended to, and would, prevent gay, lesbian or bisexual judges from impartially presiding over cases involving the rights of same-sex individuals and couples – an offensive suggestion that has been consistently rejected by the courts in similar cases involving race and sex discrimination.”

AFER, after Monday’s trial, stated, “Experts, judges and editorial boards have called Proponents’ motion to vacate judgment “preposterous,” a “non-issue,” “desperate,” “unthinkable,” and “the worst legal argument of the year.”

“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,” stated Chad Griffin, AFER Board President. “They led a campaign that was homophobic and filled with animus. Just as those who opposed inter-racial marriage forty-four years ago, those who oppose the civil rights of gay and lesbian Americans will too find themselves on the wrong side of history.”

 

Note: This post, (and above photo, of AFER Board President Chad Griffin and Ted Boutrous after today’s trial) is based upon the Twitter statements of the American Foundation for Equal Rights (AFER) and others during today’s trial.