Sponsors of California’s Proposition 8, the 2008 voter-approved referendum that limited marriage to one man and one woman, today filed a motion to toss out the trial court ruling from homosexual ex-Judge Vaughn Walker that overturned the measure.
The motion argues federal law requires “that a judge recuse himself whenever he has an ‘interest that could be substantially affected by the outcome of the proceeding’ or more generally, in any other circumstance in which ‘his impartiality might reasonably be questioned.”
The motion contends that both requirements prohibited the judge from ruling in the case, because since the ruling that overturned the will of 7 million voters, he has admitted to a long-term same-sex relationship.
That relationship would make him eligible for social or possibly financial benefits of his own rulings, analysts have told WND.
“The American people have a right to a fair judicial process, free from even the appearance of bias or prejudice,” said Andy Pugno, general counsel for ProtectMarriage.com and one of more than 2,000 attorneys in the ADF alliance. “Judge Walker’s 10-year-long same-sex relationship creates the unavoidable impression that he was not the impartial judge the law requires. He was obligated to either recuse himself or provide full disclosure of this relationship at the outset of the case. These circumstances demand setting aside his decision.”
The motion also explains it “is grounded in the fundamental principle … that no judge ‘is permitted to try cases where he has an interest in the outcome. …’ Surely, no one would suggest that Chief Judge Walker could issue an injunction directing a state official to issue a marriage license to him. Yet on this record, it must be presumed that that is precisely what has occurred.”
The motion requests a hearing on July 11 before Judge James Ware in San Francisco for discussion of the motion “for an order vacating the final judgment … and all orders entered by this court in this case on the grounds that the then-presiding judge was disqualified from sitting in this action.”
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.
The California dispute is whether homosexual duos are “a federal constitutional right” to have their relationships recognized as marrages. Walker ruled they do.
“The district who issued this judgment, retired Chief Judge Vaughn Walker, has now disclosed to the press on April 6, 2011, that he is gay and that he has been in a committed relationship for more than 10 years. Dan Levine, Gay judge never thought to drop marriage case, Reuters, Apr. 6, 2011,” according to the motion.
“He therefore, had, at a minimum, a waivable conflict and was obligated either to recuse himself or to provide ‘full disclosure on the record of the basis for disqualification,'” the motion said.
“His failure to do either was a clear violation of Section 455(a), whose ‘goal … is to avoid even the appearance of partiality,'” the motion said.
“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 affectedby the outcome of the proceeding.'”
“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,” the motion notes.
“The only responsible and just course is to vacate the judgment entered in this case,” the motion said.
It described several situations that supported the idea that there was not a level playing field in the trial:
- “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 copules 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.”
“It is undeniable that Chief Jduge Walker failed to make the required disclosure,” it argues. “And he has yet to disclose whether he has any interest in marrying his partner should the injunction he issued be upheld on appeal. These facts are plainly critical to the disqualification inquiry…”
Proposition 8, widely approved by California voters, was a constitutional amendment defining marriage as between one man and one woman.
Although it was reported in some California newspapers during the trial that Walker is homosexual, in an interview with Reuters he revealed additional details about his personal life.
“Walker had never previously discussed his sexual orientation in the press, but on Wednesday said he was in a 10-year relationship with a physician,” the reporter wrote.
That alarmed legal analysts.
“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.”
Likewise 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.