“The sponsors of California’s same-sex marriage ban said Monday that the recent disclosure by the federal judge who struck down Proposition 8 that he is in a long-term relationship with another man has given them new grounds to have his historic ruling overturned.
“Lawyers for the ban’s backers filed a motion in San Francisco’s U.S. District Court, arguing that Chief U.S. District Judge Vaughn Walker should have removed himself from the case or at least disclosed his relationship status because his ‘impartiality might reasonably be questioned.’
“‘Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case,’ attorneys for the coalition of religious and conservative groups that put Proposition 8 on the November 2008 ballot wrote.
“Leslie Abramson, a scholar of judicial ethics at the University of Louisville law school, told TIME that Cooper has [one] part right. ‘In both federal and state courts, the Code of Judicial Conduct is supposed to be self-executing,’ Abramson said. ‘The judge is not supposed to await a motion to disqualify before considering the circumstances of the case or parties.’…
“Still, even if Cooper is wrong to argue that Walker’s interest in getting married — an assertion he does not support with facts — made him ineligible to hear the case, there still remain questions. Was Walker wrong to keep quiet about his orientation during the trial? Why not simply disclose it and continue with the case?
“Abramson notes that such an approach ‘carries the most potential for transparency.’ But there’s a downside too. If judges must reveal the personal details of their lives, they could end up being deposed by fact-finding attorneys hoping to unveil nuggets of their past.”
“Experts in judicial ethics said Tuesday that carefully parsed line of reasoning is unlikely to prevail…
“Retired California state Judge Jeffrey Rothman said bias claims have arisen in the past surrounding judges with strong religious views. But he noted that the bar for disqualification is purposefully set high. Lawyers representing a clinic that performed abortions, for example, would not be able to challenge a devoutly Catholic judge, he said.
“‘They would get absolutely nowhere with such a challenge unless that judge had gone out and made statements or speeches saying he believed that Roe v. Wade ought to be overturned if that case ever came before them,’ Rothman said. ‘The question is, can the beliefs be set aside and the judge decide the case on its merits and be fair.'”
“But it also must be presumed that Chief Judge Walker had a nonwaivable conflict as well. For 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.’ 28 U.S.C. § 455(b)(4). Indeed, such a personal interest in his own marriage would place Chief Judge Walker in precisely the same shoes as the two couples who brought the case.
“Such a clear and direct stake in the outcome would create a nonwaivable conflict, and recusal would have been mandatory. Chief Judge Walker thus had a duty to disclose not only the facts concerning his relationship, but also his marriage intentions, for the parties (and the public) were entitled to know whether his waivable conflict was actually a nonwaivable conflict mandating his disqualification. Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case in violation of Section 455(b)(4). Because he did not do so when the case was assigned to him, and has not done so since, it must be presumed that he has an interest in marrying his partner and therefore was in fact the ‘judge in his own case.'”
“Opponents of same-sex marriage are arguing, in effect, that because Walker was in a long term same-sex relationship, he stood to benefit personally from Prop 8 being overturned. They argue, naturally, that the issue is not Walker’s sexuality per se, but his relationship status. But by that logic the only way a gay or lesbian judge could rule impartially on matters involving gay rights is if they’re celibate.
“The problem is that this same logic could be applied to a straight, married judge hearing the case. After all, supporters of the same-sex marriage ban are arguing that marriage equality is so damaging to the institution of marriage that the government has a vital interest in making sure gays and lesbians can’t get married. That means that a straight, married judge couldn’t be expected to be impartial, either — after all, according to supporters of Prop 8, ‘the further deinstitutionalization of marriage caused by the legalization of same-sex marriage,’ would directly impact married heterosexuals. Therefore, a heterosexual, married judge could be seen as having just as much ‘skin in the game’ as Judge Walker.”