Court challenges gay judge's decision

A retired judge and his sexual orientation will be the subject of a court hearing June 13, 2011 in San Francisco. The suit does not have any earlier legal precedent. Backers of the case call it simply a conflict of interest, while opponents fear the precedent could be an unsafe one. Post resource - Legal hearing to determine if gay judge had conflict of interest by Newsytype.com.

Proposition 8 ruled unconstitutional

According to federal judge Vaughn Walker last August, California's proposition 8 is unconstitutional, or the same-sex marriage ban is constitutional. During the trial, Walker's sexuality was speculated over and over. Walker clarified for every person by announcing his long-term relationship with a man. This statement was made last Feb.. Chief United States District Judge James Ware has scheduled a hearing to determine if the overturning of Proposition 8 should itself be overturned, depending on the supposition that Walker may have had a personal stake in the decision.

The facts

Several believe that Walker should have recused himself because of a conflict of interest due to his relationship before ruling on the Proposition 8 lawsuit.

"The motion is all about the fundamental principle that a judge really can't sit to hear their own case when they have an interest in the outcome," said attorney Andrew Pugno. "Walker's 10-year same-sex relationship creates this unavoidable impression that he was just not the impartial judge that the law requires."

Pugno explained that it had nothing to do with Walker's sexual orientation. It had to do with the truth that he had been in a long-term relationship with another man.

What Ted Olson thinks

The decision being overturned is "frivolous" and "demeaning." This is what one of Walker's defending lawyers, Ted Olson, said. The Mormon church actively campaigned to get Proposition 8 passed. Olson referred to this when saying: "What would a judge do who was Mormon, knowing the Mormon Church took such an active role?" Walker continued, "What would a judge who had a nephew or niece or son or daughter who was gay or lesbian do? We have an unlimited number of permutations of what a judge might be asked to disclose."

More precedents

Other legal experts point out that, while a judge's impartiality has never before been questioned due to sexual orientation, similar cases do exist. Earlier efforts to disqualify female judges in gender discrimination cases have failed, as well as bids to disqualify Hispanic judges in cases dealing with immigration.

'Not one scintilla of evidence'

"There is absolutely not one scintilla of evidence that the fact of who he is biased him against the proponents," according to Kate Kendell who's a homosexual rights activist. "We cannot be about assuming that simply because a judge is of a certain sexual orientation, race or gender, he or she is incapable of actually doing the job of a judge."

Calling it an 'insulting accusation'

Rory Little is a Law School Professor at the University of California Hastings. He said, "The immediate reaction is, 'Oh, he's gay, of course he ruled for the gay people.' That's kind of like saying, 'Well, he's black and of course he ruled for the black people.' It really is a sort of insulting accusation... It begins to look like an act of desperation. Rather than fighting the case on the merits, they're looking for procedural reasons to challenge it."

Articles cited

MSNBC

msnbc.msn.com/id/43375866/ns/us_news-crime_and_courts/

CBS

sanfrancisco.cbslocal.com/2011/04/27/hearing-set-for-motion-to-disqualify-prop-8-judge/

NPR

npr.org/2011/06/13/137109321/when-a-gay-judge-rules-on-gay-rights