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OPINION

Prop 8 judge's gay relationship under scrutiny

The opinions expressed by columnists are their own and do not necessarily represent the views of Townhall.com.
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SAN FRANCISCO (BP)--The landmark 2010 ruling that struck down California's constitutional marriage amendment should be vacated because the judge himself is in a long-term same-sex relationship and in essence was a "judge in his own case," supporters of the amendment argued in a motion filed April 25.
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It was the first time that attorneys for ProtectMarriage.com -- the group behind the amendment known as Prop 8 -- have raised the issue of Judge Vaughn Walker's sexuality. It comes less than a month after Walker, now retired, acknowledged in an interview with reporters that he has been in a relationship with a male physician for 10 years. That means he would have been in the relationship for about eight years when he took the case.

Prop 8, approved by voters in 2008, defined marriage as between a man and a woman and reversed a ruling by the California Supreme Court that had legalized "gay marriage." Walker's decision -- if eventually affirmed by the U.S. Supreme Court -- could lead to all 50 states recognizing "gay marriage."

The motion was filed with Judge James Ware, who took the case after Walker retired. Ware and Walker each were nominated by President George H.W. Bush.

Although there were rumors about his homosexuality during the trial, Walker did not acknowledge it until after he retired.

"Fundamental to the integrity of the judicial function, and therefore to public confidence in the courts, is the judiciary's strict fidelity to the ancient maxim that 'no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome,'" the brief said in quoting a 1955 Supreme Court case. "This principle is expressed in the Code of Judicial Ethics and is codified in federal law by statutes requiring that a judge recuse himself whenever he has an 'interest that could be substantially affected by the outcome of the proceeding.'"

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Walker had a duty to disclose "the facts concerning his relationship" and his "marriage intentions" but did not disclose either one, the motion states.

"If at any time while this case was pending before him," the motion says, "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 affected by 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. Such a clear and direct stake in the outcome would create a ... conflict, and recusal would have been mandatory."

Significantly, the attorneys for ProtectMarriage.com say they "are not suggesting that a gay or lesbian judge could not sit on this case." But they argue that Walker's relationship and his refusal to disclose it should have disqualified him. They also argue that Walker had a string of "irregular and unprecedented rulings" during the case that brings his impartiality into question:

-- He ordered ProtectMarriage.com to turn over its election year internal communications, an order that was overturned by the Ninth Circuit.

-- He was set to allow the trial to be broadcast on tape delay before the U.S. Supreme Court intervened and halted it.

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-- He broke new ground by finding a federal right to "gay marriage" -- something that no state or federal appellate court had ever done.

-- He held that homosexuals are a "suspect class," a legal term for a group that -- like racial minorities and foreign-born citizens -- qualify for special protection. That stands in contrast to the opposite conclusion by the 11 circuit courts that had considered the issue.

-- He refused to stay the case pending an appeal. The ninth circuit eventually stepped in and issued a stay.

"The unprecedented, irregular, and/or peremptory nature of these rulings is difficult -- very difficult -- to take as the product of an objective, impartial judicial mind," the motion states.

Ed Whalen, president of the Ethics and Public Policy Center and a blogger at NationalReview.com, is among those who think Walker should have recused himself. Answering critics, Whalen said many people would find it unacceptable for a judge living in a polygamous relationship to judge a case about polygamy.

"Imagine, for example, that a federal judge was living in a polygamous household with three women in State X, that he was not married to any of them, and that he wanted to be married to all three simultaneously," Whalen wrote. "Would it be proper for this judge to preside over a lawsuit challenging the anti-polygamy laws of State X as violative of the federal Constitution?"

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Attorneys for the Alliance Defense Fund, Cooper and Kirk, and the Law Office of Andrew Pugno are representing ProtectMarriage.com.

The case is Perry v. Brown (formerly Perry v. Schwarzenegger).

Michael Foust is associate editor of Baptist Press. Read the motion at http://bit.ly/fi5Jq0. Join Baptist Press' Facebook page or Twitter feed to comment on this and other articles. Visit facebook.com/baptistpress or Twitter.com/Baptist Press.

Copyright (c) 2011 Southern Baptist Convention, Baptist Press www.BPNews.net

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