June 13, 2011
Please welcome Shannon Price Minter and Christopher F. Stoll from the National Center for Lesbian Rights for a guest post preview of what to expect today.
Shannon, who is Legal Director, served as lead attorney on In re marriage cases in 2008, in which the California Supreme Court ruled that limiting marriage to opposite-sex couples is unconstitutional. Christopher, Senior Staff Attorney with NCLR, served as co-counsel on that case and many other cases as part of NCLR’s “Marriage Team”. Previously, both took legal-oriented questions and provided answers live from the Prop8TrialTracker community on the Perry case and the appeals process, the transcripts of which can be found here and here -Adam
By Shannon Price Minter and Christopher F. Stoll, National Center for Lesbian Rights
Today, the U.S. District Court in San Francisco will hold a hearing in the Perry case to consider a motion filed by the supporters of Proposition 8. The Prop 8 supporters are arguing that Judge Walker’s August 2010 decision invalidating Prop 8 should be set aside because he is gay and in a long-term relationship, and for that reason alone, should have declined to preside over the Perry trial. The Prop 8 supporters’ motion raises a barely-updated version of an old, offensive, and discredited argument: that a judge may be disqualified from hearing a case based on a personal characteristic such as race, sex, or sexual orientation.
As readers may recall, then-Chief Judge Vaughn R. Walker presided over a three week trial in January 2010. That August, Judge Walker issued a thorough, detailed, and carefully-reasoned 136-page opinion discussing the overwhelming evidence that the campaign to pass Prop 8 played on long-standing prejudice and stereotyping against gay and lesbian people. Judge Walker ruled that Prop 8 is unconstitutional because it serves no legitimate purpose and marks same-sex relationships as unequal and undeserving of recognition and protection. The case is now on appeal before the Ninth Circuit Court of Appeals.
Judge Walker announced that he was retiring in September 2010. After retiring, he gave an interview in which he discussed his relationship with another man. This spring, the supporters of Prop 8 filed a motion in the district court to “vacate”—in other words, to invalidate—Judge Walker’s decision, arguing that that Judge Walker had a personal interest in the case because theoretically he could decide to marry his partner if Prop 8 is invalidated. The new Chief Judge, James Ware, will hear and decide the motion.
It is important to place this motion in historical context. The Prop 8 supporters’ argument is far from new: for as long as civil rights cases have been litigated in this country, opponents of equality have accused minority judges of bias — of somehow being less able than other judges to rule impartially on important constitutional issues that by definition affect not just minority groups, but everyone.
In a famous 1975 case, a law firm that had been sued for sex discrimination argued that Judge Constance Baker Motley should recuse herself, accusing her of “‘strongly identif[ying] with those who suffered discrimination in employment because of sex or race’” because she was a woman and had worked as a civil rights advocate prior to becoming a judge. Judge Motley correctly explained, “If background or sex or race of each judge were, by definition, sufficient for removal, no judge on this court could hear this case[.]” U.S. Supreme Court Justice Ruth Bader Ginsberg has memorably recounted the case and Judge Motley’s remarkable career here.
Similarly, in a 1984 case, the Tenth Circuit Court of Appeals rejected the argument that a Mormon judge in Utah should have recused himself from a case that challenged the religious power structure in Utah.
It is fortunate for our judicial system that this insidious argument has never gained traction. Like all people, judges have personal characteristics like race, sex, religion — and sexual orientation. The courts have recognized repeatedly that these common human characteristics provide no basis for challenging a judge’s ability to decide important questions of civil rights fairly and impartially. Our judicial process is founded on the principle that judges will put any personal or political bias aside and rule on every case based on the law and the facts before them—and that is exactly what Judge Walker did last year.
The Prop 8 supporters will likely focus on Judge Walker’s relationship, arguing that because Judge Walker might someday wish to marry his partner, he had a personal stake in the outcome of the Perry trial. But any unmarried judge, partnered or not, might someday wish to marry. The Prop 8 supporters’ argument is just a smokescreen for their real point: that no gay or lesbian judge could ever be trusted to rule fairly on a case seeking marriage equality for same-sex couples.
At today’s hearing, Judge Ware will hear arguments from counsel for the Prop 8 supporters, followed by arguments from Theodore Boutrous, who represents the couples who challenged Prop 8, and from the San Francisco City Attorney’s office, which is also a party in the case. Judge Ware may issue an order from the bench immediately following the arguments, or he may issue a written opinion later. There is no set time within which Judge Ware must decide the motion, but it is likely that he will issue a decision within a few weeks after the hearing.
We hope and believe that after considering the long and shameful history of attempts to disqualify judges based on personal characteristics, Judge Ware will resoundingly reject this offensive and desperate tactic by the Prop 8 supporters.