Lawyer Groups Say Gay Judge Can Rule on Gay Marriage

[John Koopman]

More than 40 legal organizations have banded together to file a friend of the court brief in support of former Chief Judge Vaughn Walker, and his ruling in the Proposition 8 case.

The organizations are led by Bay Area Lawyers for Individual Freedom, an association of gay, lesbian, bisexual and transgender lawyers around San Francisco. Other LGBT lawyer groups are there, as well as various associations of minority lawyers, including the Asian Law Caucus, the Black Women Lawyers Association of Northern California and the Bay Area Association of Muslim Lawyers.

The amicus curiae come in response to a motion filed in late April by the proponents of Prop. 8 who said Walker’s ruling against the ban on same-sex marriage should be thrown out because he is gay and in a long-term relationship with a man. Walker, they said, might want to one day marry his partner, and as such, had a conflict of interest in the case. The motion is before Northern District Chief Judge James Ware.

The Wednesday filing says litigants have throughout the years tried to use judges’ affiliations with minority communities to disqualify them. And it was always wrong, the brief says.

“A challenge, whether explicit or tacit, which seeks to disqualify a judge based on association with a minority community wrongfully impugns not only the judge but also the independence of the judiciary and the fairness of our judicial system,” the brief says.

The brief goes on to discuss how courts have dismissed other, similar claims related to judges’ backgrounds and ethnicities. It refers to African-American judges presiding over segregation cases and a Jewish judge presiding over a trial involving attempts by Islamic extremists to destroy the World Trade Center in 1993, and several others. The brief notes that courts have always held that a judge’s personal background was no reason to demand recusal.

The proponents are seeking a July hearing date. Walker's ruling is on appeal at the Ninth Circuit U.S. Court of Appeals, which kicked a question on standing to the state Supreme Court. The state justices haven't yet set an argument date.