Vaughn Walker

SAN FRANCISCO – It now seems unlikely that a federal judge will vacate a landmark decision in which a gay judge ruled that Proposition 8 is unconstitutional. The evidence? U.S. District Court Chief Judge James Ware said, following a three-hour hearing Monday, that he plans to issue his ruling concerning a motion to vacate within 24 hours.

Judges typically take months to write decisions of consequence, and a decision to vacate the August 2010 ruling from former Judge Vaughn Walker declaring Proposition 8 unconstitutional would be of enormous consequence. To expect that Judge Ware would write in 24 hours a decision that would undo two years of litigation—including issues pending now before the 9th Circuit U.S. Court of Appeals and the California Supreme Court—seems unlikely.

And, there was little in Judge Ware’s questioning of Yes on 8 attorney Charles Cooper during the June 13 hearing in federal court in San Francisco to give proponents of Proposition 8 much to hang their hopes upon.

Ware noted that it is an unusual event when a judge is put in the position of deciding whether a colleague should have recused himself. Judge Vaughn Walker, in August 2010, ruled that the state ban on marriage licenses for same-sex couples violates the federal constitutional guarantees to equal protection and due process. Eight months after that ruling and two months after retiring from the bench, Walker acknowledged to reporters that he himself is gay and that he has been in a relationship for the past 10 years with a man.

The courtroom erupted in laughter Monday morning when Yes on 8 attorney Cooper said that Walker should have disclosed to attorneys before the January 2010 trial on Proposition 8 not only that he had been in a relationship with a man but that he had no interest in marrying that man. Cooper argued that Walker’s longtime relationship was circumstantial proof that Walker would benefit from a ruling that enabled same-sex couples to marry.

Ware challenged Cooper to explain how a longtime relationship constitutes proof that Walker would benefit from such a ruling, noting, “you can be in a longtime relationship without being in it for purposes of marriage.”

But a “reasonable person,” said Cooper, could believe the judge had a potential to benefit from a ruling striking Proposition 8. And Walker’s relationship put him a position “precisely” the same as the two plaintiff couples in the case.

The U.S. Code dealing with “Judiciary and Judicial Procedure” states that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” It also states that a judge “shall also disqualify himself” if “He knows that he … has a financial interest in the subject matter in controversy … or any other interest that could be substantially affected by the outcome of the proceeding….”

“What fact would you have court rely on to know that Judge Walker wanted to change his relationship [and marry, as the two plaintiff couples sought to do]?” asked Ware.

“It’s common sense,” said Cooper, “and a reasonable person would conclude that Judge Walker had an interest in marrying.”

“So, there are no facts to suggest Judge Walker wanted to change his relationship to marriage,” stated Ware.

Cooper then sought to persuade the judge that the very fact that Walker did not disclose his relationship to attorneys and did not disclose whether he had any interest in marrying the man reasonably called Walker’s impartiality into question.

“But how does failure to disclose serve as evidence that he wanted to change the relationship?” pressed Ware.

Ted Boutrous, an attorney on the legal team headed by high-profile political attorneys Ted Olson and David Boies, said Cooper had no evidence and that Walker was under no obligation to disclose either his sexual orientation or his relationship.

“Where would the disclosure requirements stop?” he asked.

Boutrous also refuted Cooper’s contention that it would be reasonable to presume Walker was “similarly situated” with plaintiffs and wanted to marry his longtime partner.

“Just because people are gay doesn’t mean they’re all alike,” said Boutrous. “Some do want to marry, some don’t…. There is no evidence that Judge Walker intended to get married.”

Judge Walker was not in the courtroom Monday. Judge Ware had excused him from appearing on a second motion before the court—one to require that all copies of the videotape of last year’s trial be turned over to the court. Walker turned over the videotapes and requested to be excused from appearing.

Interestingly, Ware started off discussion of the motion concerning the videotapes by disclosing that, as the court’s new chief judge, he had presented Walker, the retiring Chief Justice, with a personal copy of the trial’s videotape during Walker’s retirement ceremony. Ware started off discussion of the motion to vacate by informing Cooper that he had presided over the marriage of a same-sex couple. Cooper made no response to the same-sex marriage ceremony, but said he would not consider the presentation of the videotapes during the retirement ceremony to be grounds for Ware to recuse himself from this matter.

After hearing brief arguments, Ware ruled from the bench and rejected Yes on 8’s request to have all copies of the videotape turned over to the court. He indicated he would, at a later date, hear arguments on a motion from plaintiffs seeking to allow public release of the videotapes. Ware said he hoped to have a written decision concerning the motion to vacate on the court’s website within 24 hours.