Bob Unruh joined WND in 2006 after nearly three decades with the Associated Press, as well as several Upper Midwest newspapers, where he covered everything from legislative battles and sports to tornadoes and homicidal survivalists. He is also a photographer whose scenic work has been used commercially.More ↓Less ↑
A ruling today from the 9th U.S. Circuit Court of Appeals means that the video recordings of the Perry v. Brown Proposition 8 trial, where a homosexual judge decided to grant “marriage” rights to homosexuals in California, will remain under seal.
The appellate court said the trial judge, Vaughn Walker, who later retired and began using the recordings during his private speaking engagements, had promised the litigants they would be sealed, and so they must remain.
“The record compels the finding that the trial judge’s representations to the parties were solemn commitments. … We therefore reverse the order of the district court as an abuse of its discretion and remand with instructions to maintain the recording under seal,” the court said in an opinion written by Judge Stephen Reinhardt.
The judge who replaced Walker, James Ware, had ordered the tapes released, but the appeals court scolded him, saying he failed to recognize “the legal consequences of Chief Judge Walker’s statements given the factual and legal context in which they occurred.
“Judge Walker did not nearly create the recording and place it in the record under conditions that he and the parties understood to be subject to later modification; rather, he promised the litigants that the conditions under which the recording was maintained would not change…”
Still pending before the court is the central issue of whether Proposition 8, through which voters in the state amended their constitution to define marriage as being between one man and one woman only, would be upheld.
Voters approved the constitutional amendment after the state Supreme Court tried to impose homosexual marriage on citizens. Homosexual interests then took their case to federal court where Walker, a homosexual, determined that the state was required to grant homosexuals “marriage” rights.
The supporters of the measure had argued any release beyond the courthouse of the videos would intimidate their witnesses. In fact, death threats from homosexual interests were reported multiple times by those who advocated for Prop 8 in California, and other pro-traditional marriage efforts around the nation.
Walker had planned to allow camera coverage of the court events over the objections of Prop 8 supporters. The Supreme Court then intervened and said no, but Walker had the recordings made anyway.
At that time he promised they would remain under seal. Ware had ordered the recordings to be made available.
There also is an additional challenge being deliberated: that Walker should have been disqualified from hearing the case because as a homosexual with a longtime partner, he was situated to benefit from his own ruling.
“The American people deserve a court system that upholds the integrity of the judicial process,” said Austin R. Nimocks, senior legal counsel with the Alliance Defense Fund, which has worked on the case.
“The 9th Circuit correctly ruled that when a trial judge makes a solemn promise, as Judge Walker did by assuring the parties that the trial video would not be publicly released, the judiciary must not be allowed to renege on its pledge. To rule otherwise would severely undermine the public’s confidence in the federal courts by breaching the bond of trust between the people and their justice system. As the 9th Circuit today wrote, ‘The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word.’”
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,” Nimocks said at the time.
“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.”
“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 judgment 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.