The opinion today comes from Judge James Ware in a request that a ruling from ex-Judge Vaughn Walker, an open homosexual who shared many of the circumstances of the plaintiffs in the hotly fought Proposition 8 legal dispute over same-sex “marriage,” should be overturned.
No, said Ware, a judge who is homosexual and may benefit from his own ruling is allowed to preside.
“The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification,” Ware wrote in a 21-page opinion on the issue raised at yesterday’s hearing.
“It is not reasonable to presume that a judge in incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings.”
Ware likened the situation of a homosexual judge who admits to being in a long-term relationship with another homosexual and deciding on possible future financial and social benefits to that of a black judge ruling on an issue of civil rights.
“The court finds that Judge Walker was not required to recuse himself … on the ground that he was engaged in a long-term same-sex relationship and, thus, could reap speculative benefit from an injunction halting enforcement of Proposition 8 in California,” Ware said.
“We all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right,” he said. “Although this case was filed by same-sex couples seeking to end a California constitutional restriction on their right to marry, all Californians have an equal interest in the outcome of the case.
“The single characteristic that Judge Walker shares with the plaintiffs, albeit one that might not have been shared with the majority of Californians, gave him no greater interest in a proper decision on the merits than would exist for any other judge,” Ware claimed.
Addressing concerns that judicial ethics procedures call for recusal even when there is the appearance of impropriety, the judge blasted those may hold such perceptions as unreasonable.
“It would not be reasonable to regard a fact as bringing a judge’s impartiality into question if doing so would institute a ‘double standard for minority judges’ whereby the fact that a judge is gay, or black, or female would ‘raise doubts about … impartiality.'” Ware said.
“Reasonableness is not determined on the basis of what a particular gropu of individuals may think, nor even on the basis of what a majority of indivduals in a group believe to be the case.”
The case, although appealed to the 9th U.S. Circuit Court of Appeals, is pending before the California Supreme Court. The high court has agreed to rule whether it is appropriate for the supporters of Proposition 8 to defend the state constitution in federal court after state officials, including the governor and state attorney general, refused to respond to their statutory obligations to defend the law.
If the proposition supporters are allowed to defend the state’s law, the arguments will develop in the federal appeals court.
Months after Walker ruled at the end of a weeks-long trial that it is a federal civil right for same-sex duos to describe their relationships as “marriage,” he gave an interview to a reporter in which he confirmed his long-term relationship with another homosexual, placing him squarely in the position of being able to benefit financially and socially from his own ruling, critics contend.
“When judges ruled on cases in which they possess a direct and substantial personal interest, there can be no justice. And when judges fail to disclose all relevant facts concerning their potential personal interest in the outcome of a case and permit the appearance of partiality, the entirety of our judicial process is undermined,” said Austin R. Nimocks of the Alliance Defense Fund.
The organization is part of the legal team that has been fighting on behalf of traditional marriage and the authority of voters to choose such societal standards.
“Judges have a duty not only to apply the law without bias, but also to do so in a way that avoids even the mere appearance of impropriety. This idea is a cornerstone of the judiciary. Thus, the Supreme Court has long been clear that ‘no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome,'” he said.
Since Walker’s ruling, a campaign has been launched calling on members of Congress to defend marriage between one man and one woman as the foundation of civilization.
The effort is being championed by Kenneth L. Hutcherson, senior pastor and co-founder of Antioch Bible Church in Kirkland, Wash., who recently wrote in a column on WND saying the defense of marriage “is a movement I would be willing to lead.”
The “TIME TO DEFEND MARRIAGE: The Genesis 2:24 Campaign” is named after the earliest scriptural teaching on marriage. It enables constituents to send letters to all 535 members of the U.S. House of Representatives, encouraging them to prevent the societal consequences of caving in to the demands of homosexuals who insist the rest of society affirm their same-sex “marriages.”
“Let’s be clear:” the letter tells members of Congress. “What we’re talking about is the federal government’s de facto imposition, on all 50 states, of a radical redefinition of marriage for the first time in more than 5,000 years – just to indulge the questionable demands of a miniscule segment of our population.
“Yet, who can deny that such frivolous experimentation with a foundational societal institution like marriage will inevitably result in serious, long-term ramifications to society as a whole? Loss of religious liberties of the vast majority of Americans as well as the complete breakdown of the family as we know it are just part of the fallout that will result,” it says.
In Canada, arguments already are being made in courts that since government prohibitions on same-sex “marriage” have been removed, so should bans on polygamy. A California Supreme Court justice warned of such developments when his court, over his objections, created same-sex “marriage” in the state.
The campaign was launched after President Obama and attorney general Eric Holder said they would refuse to fulfill their obligations to defend the federal Defense of Marriage Act when it is challenged in court.
Critics of the judge noted that there were several other circumstances, too, in which Walker’s behavior was described as anomalous:
- “Before the trial even began, the 9th Circuit issued an extraordinary write of mandamus to overturn Chief Judge Walker’s order requiring proponents to turn over confidential internal communications…”
- “Also before the trial … the Supreme Court of the United States issued an emergency stay … enjoining Chief Judge Walker from video recording and disseminating the trial proceedings…”
- “Walker’s decision recognizing a right under the Federal Constitution for same-sex couples to have their relationships recognized as marriages conflicts with the judgement of every State and federal appellate court to consider the validity of the traditional opposite-sex definition of marriage. …”
- Walker peremptorily held that gays and lesbians are a suspect class … even though all 11 Circuit Courts of Appeals … have repeatedly and squarely held to the contrary.”
- “Walker refused to stay his judgment pending appeal. As a result, the 9th Circuit was forced to issue such a stay.”
WND reported earlier when two analysts contended that the judge’s actions irreparably tainted the case.
“He is either a direct beneficiary of his ruling in the case, or a person with a close-enough personal interest in the case that his impartiality might reasonably have been questioned,” wrote John C. Eastman, the Henry Salvatori Professor of Law & Community Service and a former dean at Chapman University School of Law.
“Not his sexual orientation, which alone would not require recusal, but the possibility that he could directly benefit from his ruling, raised the prospect that recusal may have been warranted,” he wrote in a San Francisco newspaper blog. “If the relationship was such that it gave Walker a financial or other interest in the outcome of the proceeding – and the ability to marry would certainly qualify – recusal would be mandatory and nonwaivable.”
Also concerned was J. Matt Barber, vice president of Liberty Counsel Action and associate dean at Liberty University School of Law.
“Back in February of 2010 after it became rumored that Judge Vaughn Walker is a practitioner of the homosexual lifestyle and that he has a long-term male lover, I was one of the few people to call for his recusal,” he told WND. “With Judge Walker’s recent admission that he does in fact practice homosexuality, I’ve been proven right. His ruling on the Prop 8 case should be immediately vacated.”
Barber explained that federal law is very clear in that the code of judicial conduct demands a judge remove himself if “the judge’s impartiality might reasonably be questioned” or when he “has a financial … or any other interest that could be affected substantially by the outcome of the proceeding.”
“By manufacturing from thin air a constitutional ‘right’ to same-sex ‘marriage,’ Judge Walker used his position on the bench to create for himself a new privilege that he previously did not have. It’s undeniable that he had an ‘interest that could be affected substantially by the outcome of the proceeding,'” Barber said.
Walker’s 136-page ruling said, “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”
In his ruling, Walker also arrived at the following highly controversial legal findings:
- “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.”
- “Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.”
- “The gender of a child’s parent is not a factor in a child’s adjustment.”
- “The evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes.”
- “Gender no longer forms an essential part of marriage; marriage under law is a union of equals.”
- “Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples.”
His decision essentially ignored a warning from California Supreme Court Justice Marvin Baxter, who dissented when his court created same-sex “marriage” in the state.
Baxter wrote, “The bans on incestuous and polygamous marriages are ancient and deeprooted, and, as the majority suggests, they are supported by strong considerations of social policy. Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous. Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deeprooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law.
“Who can say that, in 10, 15 or 20 years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?” Baxter wrote.