ORDER DENYING DEFENDANT- INTERVENORS’ MOTION TO VACATE JUDGMENT (available here)
Immediately after Judge Walker ruled in favor of same-sex marriage back in Aug 2010, opponents were calling foul because of his sexual orientation. Although Judge Walker was quiet on the issue during the trial (and during his career for that matter), he spoke publicly after his retirement and shared that he was in a ten year same-sex relationship. United States District Chief Judge James Ware was asked to determine whether it was inappropriate for a gay judge to preside over the Prop 8 trial, and ruled that it was not.
The statute at issue requires recusal if “the judge has a substantial non-pecuniary interest in the case, or if there is some fact that brings the impartiality of the judge reasonably into question.” Here, since Judge Walker did not recuse himself, the defendant-intervenors asked for his dismissal, alleging an “actual interest” in the outcome (as opposed to a broad bias because of his shared sexuality). Judge Ware found their arguments unpersuasive. Below is a summary of the ruling, released earlier today:
- The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public is not a basis for either recusal or disqualification
- Even if a 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
- It is not reasonable to presume that a judge is 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.
- We all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right, and Judge Walker did not have a greater interest than the general public.
- Any potential benefit to Judge Walker (who could marry his same-sex partner, even though there is no evidence to suggest he will or desires to) is too speculative and attenuated to warrant recusal.
Judge Ware provides a short background on the case, and quickly established that jurisdiction and timeliness (questionable at one year after the trial) are sufficient. He then emphatically dismisses the argument that Judge Walker could not have been partial on the same-sex marriage issue because he is gay. In providing precedent from numerous other circuits , the idea that a shared characteristic (religion, sexuality, gender) can disqualify a judge has been “categorically rejected” by the federal courts as the sole basis for recusal/dismissal. Although the exact issue of a judge’s sexual orientation as the basis for recusal is one of first impression, the decision compares this to minority judges – the latter are not required to recuse themselves from civil rights cases. ”To hold otherwise, and require recusal merely based on the fact that the presiding judge is engaged in a long-term same-sex relationship, is to place an inordinate burden on minority judges.”
Even though Judge Ware found that dismissal was not required, he still may have disqualified Judge Walker based on a finding or reasonable appearance of partiality. Defendant-intervenors argued that the judge should have disclosed his relationship prior to trial, and failure to do so harmed the integrity of the judicial system. However, they had “a substantial burden to show that the judge is biased.” The fact that his same-sex relationship was not disclosed failed to meet this high standard “because it depends upon the assumption that a judge… has an interest in getting married which is so powerful that it would render that judge incapable of performing his duties.” Judge Ware ruled that a well-informed, thoughtful observer would obviously know that the mere fact that Judge Walker is in a relationship with another person does not ipso facto imply that he is so interested in marrying that he would be unable to exhibit the impartiality which all federal judges maintain. There is no evidence either way on Judge Walker’s stance or desire to get married.
I doubt anyone is terribly surprised by this decision from Judge Ware, and it is certainly a victory for same-sex marriage advocates.  An appeal is expected, and though this is the first time this issue has been litigated it is not to be the last.
 See, e.g., Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 660 (10th Cir. 2002); MacDraw, Inc. v. CIT Group Equip. Financing, Inc., 138 F.3d 33, 37 (2d Cir. 1998); Blank v. Sullivan & Cromwell, 418 F. Supp. 1, 4 (S.D.N.Y. 1975); Feminist Women’s Health Center v. Codispoti, 69 F.3d 399, 400 (9th Cir. 1995); United States v. Alabama, 828 F.2d 1532, 1541-42 (11th Cir. 1987); In re City of Houston, 745 F.2d 925, 931 (5th Cir. 1984).
 Judge Ware also determined that Judge Walker is not required to return his copies of the trial recordings (available here). A controversial issue during the trial was whether it could be televised as part of the Ninth Circuit’s pilot program on audio-recording and transmission; ultimately it was not. The recordings currently are under a protective order, and Judge Walker has already voluntarily given his chambers copy of the video to the Court, which filed the copy under seal.