Protect Marriage: We Caught Judge Vaughn Walker Working With Ted Olson

Three months ago now-retired Prop 8 Judge Vaughn Walker emailed Ted Olson to ask whether he should attend next week's oral arguments at the Supreme Court. Armed (somehow) with a copy of that email, Protect Marriage is claiming that Walker's request demonstrates "the cozy relationship between Walker and our opponents, casting even more doubt on the legitimacy of Walker's one-sided and unprecedented handling of the 2010 trial against Prop 8."  This news comes via a breathless "breaking" alert from Protect Marriage which links to a website that reports the story with this disclaimer:

This blog post is a piece of journalism, breaking a story that should be of public interest regarding the conduct of a former jurist on a significant case. This site does not advocate an anti-gay rights agenda, and the proprietor of this web site is a supporter of gay marriage (although he disapproves of the imposition of gay marriage on society through judicial fiat).

Nor does this web site assert that Walker, Olson, or Olson’s partner has engaged in any breach of legal ethics. Walker’s views on the decision are no secret: he has spoken since retirement of his belief that the case was appropriately brought and that his decision was correct. It is not shocking that a judge would defend a decision he has already made.

But the behavior of Walker, as revealed by these emails, creates the appearance of a partisan rather than an impartial former jurist who simply believes he issued a correct ruling. Walker was so invested in his ruling that he wanted to watch the appellate courts’ argument himself. He went out of his way to make sure that he consulted with the winning side to help them prevail in the appellate courts. 

Meh. This is nothing.

TODAY: Final Prop 8 Hearing

The Ninth Circuit Court will today hear final arguments on why the Prop 8 trial tapes should be made public. More importantly, they will hear arguments regarding the motion to vacate Judge Vaughn Walker's ruling because he is gay. I'll be live-tweeting the proceedings and will (hopefully) have live video here on JMG.

9th Circuit Consolidates Prop 8 Appeal With Complaint On Judge's Gayness

Yesterday the Ninth Circuit Court of Appeals announced that it would simultaneously consider the appeal of the overturn of Prop 8 alongside a separate complaint that Judge Vaughn Walker should have recused himself for being gay. Chris Geidner reports at Metro Weekly:

With today's order, all of the questions relating to the validity and merits of the constitutionality of Proposition 8 could be decided by the Ninth Circuit in one decision, allowing for the most clean appeal possible to the U.S. Supreme Court. The only ancillary matter still unconsolidated is the question of whether the tapes of the Proposition 8 trial conducted by Walker in January 2010 and concluded that June can be released to the media and public. The Ninth Circuit oral arguments on the appeal of that question will be held at 2:30 p.m. Pacific Time Dec. 8.

Prop 8 Backers File Another Brief To Overturn Judge Walker's Ruling

They keep losing, but the backers of Proposition 8 just appeal, appeal, appeal. Once again, they are demanding that Judge Walker's ruling be overturned because his gayness and long-term relationship constituted an inherent conflict of interest.

The sponsors of California's voter-approved same-sex marriage ban have asked a federal court to invalidate the ruling of the federal judge who struck it down, saying the judge should be disqualified because he did not divulge he was in a long-term relationship with another man. Lawyers for the Proposition 8's backers filed their open brief on the issue late Monday with the 9th U.S. Circuit Court of Appeals in San Francisco.

They claim that another federal judge erred when he concluded U.S. Chief Judge Vaughn Walker's relationship status was irrelevant to Walker's ability to fairly preside over the trial on the measure's constitutionality. In their brief, they argue that Walker's impartiality can be questioned because he is "similarly situated" to the plaintiffs who sued to overturn Proposition 8, two same-sex couples in established relationships. They also said that while Walker has not indicated if he and his partner wish to marry, research presented as evidence in the trial found that two-thirds of unmarried same-sex couples would tie the knot if they could.

CALIFORNIA: Court Rejects Claim That Prop 8 Judge Should Have Recused Himself

Not at all surprising.

A federal judge on Tuesday refused to invalidate last year's ruling against Proposition 8, deciding the gay jurist who overturned the same-sex marriage ban had no obligation to step aside because of a possible conflict of interest. The decision by Chief Judge James Ware of the U.S. District Court in San Francisco left the ruling by retired Judge Vaughn R. Walker in place. Walker’s decision remains on hold pending a separate appeal to the U.S. 9th Circuit Court of Appeals. Proponents of Proposition 8 argued that Walker's conflict was not his sexual orientation, but the fact that he was in a serious same-sex relationship that could conceivably lead to marriage.

NOTE: I'm a few hours late with this story, but I was stuck on the no-internet joy called Frontier Airlines.

VIDEO: CNN reports on the ruling.

More From Kate Kendell On Prop 8 Hearing

Watch this!

NCLR Reacts To Prop 8 Hearing

Via press release:

Today, Chief Judge James Ware of the U.S. District Court for the Northern District of California heard arguments on a motion to invalidate former U.S. District Court Chief Judge Vaughn Walker's landmark ruling striking down Proposition 8.

Statement by NCLR Executive Director Kate Kendell:

"Today's hearing made it crystal clear that the Prop 8 proponents' central claim--that Judge Walker should have recused himself from the case because he is in a same-sex relationship--is absolutely baseless. During the hearing, Judge Ware pointedly asked the attorney for the proponents whether an African-American judge would have to recuse himself from a race discrimination case because some people might view him as biased. As Judge Ware's question artfully showed, our legal system does not assume that judges who are in the majority with respect to their race, religion, sexual orientation or any other personal characteristic are the only ones who can be unbiased. Judges take an oath to be impartial and do their job faithfully. It is outrageous and offensive to suggest that a gay judge is incapable of fulfilling that vow, or that Judge Walker did not do so in this case. We are hopeful that the ruling will dismiss this bigoted attempt to discredit Judge Walker's eminently sound ruling that concluded correctly, after weeks of trial and months of careful consideration, that Prop 8 is unconstitutional."

A ruling is expected within 24 hours.

UPDATE: Lambda Legal weighs in.

"Instead of putting Prop 8 on trial, the proponents attempted to put the judge who presided over the case on trial. But the absurdity and offensiveness of the Proponents' position - that a gay judge cannot decide a civil rights issue - became even more apparent under the court's rigorous questioning. Apparently, the Proponents also believe that the impartiality of female judges who have been the victims of rape is open to question in cases involving sexual assault. The court is likely to deny this motion for what it is: a desperate and dangerous witch hunt for gay judges that comes at the expense of judicial integrity."

New York Times Denounces Campaign Against Judge Vaughn Walker

The New York Times has published a blistering editorial denouncing the attempt to nullify Judge Vaughn Walker's Prop 8 ruling because he is a gay man.

After the trial, Judge Walker said he is gay and involved in a long-term relationship. Last week, Proposition 8’s lawyers argued that the ruling should be tossed out because he had had a duty to recuse himself, or at least disclose the relationship at the start of the case. The claim is bogus. It is well established that personal characteristics, like race, sex, ethnicity, religion or sexual orientation, do not by themselves invoke the rule that judges must step aside if their “impartiality might reasonably be questioned.” Our justice system relies on trusting members of the nation’s diverse bench to put aside their personal characteristics and abide by their duty of even-handedness. Any other approach would invite foolish and unacceptable results — female judges being kept from hearing rape or sexual discrimination cases, or black judges from hearing cases involving racial bias or civil rights.

Read the full editorial.

Matt Baume: Marriage News Watch

Focus On The Family On King & Spalding

With side attacks on the president and Vaughn Walker.

AFA's Poll Of The Day

Prop 8 Proponents Move To Vacate Judge Vaughn Walker's Ruling Because He's Gay

They've been talking about it for weeks and today Prop 8's backers officially filed to vacate Judge Vaughn Walker's ruling overturning the ban of same-sex marriage in California. Because a gay judge cannot possibly be impartial about gay issues.

The sponsors of California's same-sex marriage ban said Monday that the recent disclosure by the federal judge who struck down Proposition 8 that he is in a long-term relationship with another man has given them new grounds to have his historic ruling overturned. Lawyers for the ban's backers filed a motion in San Francisco's U.S. District Court, arguing that Chief U.S. District Judge Vaughn Walker should have removed himself from the case or at least disclosed his relationship status because his "impartiality might reasonably be questioned." "Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case," attorneys for the coalition of religious and conservative groups that put Proposition 8 on the November 2008 ballot wrote.

Lambda Legal's Jon Davidson reacts:

To say that Judge Walker's should have disclosed his ten-year relationship with another man or that it made him unfit to rule on Proposition 8 is like saying that a married heterosexual judge deciding an issue in a divorce proceeding has to disclose if he or she is having marital problems and might someday be affected by legal rulings in the case. Or that any judge who professes any religious faith is unable to rule on any question of religious liberty or, at a minimum, must disclose what his faith teaches. Much like a suggestion that a female judge could not preside over a case involving sexual harassment or an African American judge could not preside over a case involving race discrimination, Proposition 8's supporters improperly are suggesting that a judge will rule in favor of any litigant with whom he shares a personal characteristic.

American Foundation for Equal Rights reacts:

"This motion is yet another in a string of desperate and absurd motions by Prop 8 Proponents who refuse to accept the fact that the freedom to marry is a constitutional right. They're attempting to keep secret the video of the public trial and they're attacking the judge because they disagree with his decision. Clearly, the Proponents are grasping at straws because they have

NCLR's Shannon Minter reacts:

"This is a desperate and ill-advised move that underscores their inability to defend Prop 8 on the merits. This is not likely to win them any points with the courts, who understandably do not appreciate having the integrity of judges called into question based on such outrageous grounds. This is part and parcel of the underhanded way the Prop 8 campaign itself was run-based on lies, insinuations, and unsupported innuendo."

HomoQuotable - Greg Quinlan

"When two plus two doesn't equal four anymore, you can do anything you want because logic and truth [don't] matter. We are no longer a nation of laws; we are a nation of lawmakers. And those lawmakers happen to wear black robes and sit in courtrooms. I have to speak to this as a former homosexual. This is part of the pathology, the arrogance of the narcissism of homosexuality, because Judge Walker is himself a homosexual and proud to say so. So this is the issue that we have here. We have the elitist arrogance of the homosexual political movement who are making rules as they go along. This is illicit and illegal what he did." - "Ex-gay" whackjob Greg Quinlan, who is ever so pissed that Walker recently played a Prop 8 trial clip during a speech to college students.

RELATED: In 2008 this "former homosexual" was divorced by his wife, presumably on the grounds of extreme douchebaggery. And gayness. Definitely gayness.

Matt Baume: This Week In Prop 8

Baume recaps the attempt to keep the Prop 8 trial footage out of the public eye and last week's civil unions vote in Delaware.

SF Chronicle Editorial: Judge Walker Is Gay, Prop 8 Overturn Must Be Vacated

The San Francisco Chronicle has posted an editorial in which failed 2010 California attorney general candidate John Eastman calls for vacating Judge Vaughn Walker's ruling to overturn Prop 8. Because Walker's recent official coming out as a gay man in a long-term relationship shows that he personally benefited from his own ruling.

Walker's admission requires that his decision in the case be vacated. He is either a direct beneficiary of his ruling in the case, or a person with a close-enough personal interest in the case that his impartiality might reasonably have been questioned if the required disclosures had been made. In Liljeberg vs. Health Services Acquisition Corp., the U.S. Supreme Court held that vacatur is required even when the disqualifying relationship only became known to the parties 10 months after the judgment entered in the case had been upheld on appeal. Where an objective observer would have questioned the judge's impartiality, recusal is required, and the appropriate remedy is to vacate the judgment because of the risk of injustice to the parties and of undermining the public's confidence in the judicial process.

Nowhere in Eastman's piece does he mention that NOM supported his campaign for attorney general. The Chronicle fails to note that pesky detail as well.

What Might Happen Today With Prop 8?

Over at Metro Weekly, reporter Chris Geidner has posted an excellent 10-item FAQ sheet about today's hearing of Prop 8 in the Ninth Circuit Court. Question #8 asks: "What Could The Court Rule?"

With no specified timeline, the court will issue its ruling -- although the fact that the court gave the case expedited consideration as to briefing and the scheduling of the oral arguments suggests it is cognizant of the desire for a quick resolution of the case.

If the court holds that some party has standing to appeal Walker's ruling, it could affirm the trial court and say that Proposition 8 is unconstitutional or it could reverse the trial court and say that Proposition 8 is constitutional. At that point, the ruling would have "precedent" -- meaning the judges would need to adhere to it -- in all of the trial courts in the Ninth Circuit.

The court also could find that neither the proponents nor Imperial County have standing and dismiss the appeal. This would leave Walker's ruling in place and invalidate Proposition 8, but would limit the ruling only to his order and provide no appellate precedent that would apply to the entire Ninth Circuit.

To take the least likely position, it could dismiss the appeal and also hold that no standing existed at trial, which could lead the appellate court to vacate Walker's judgment and, effectively, erase the entire case. This would mean that Proposition 8 would remain in effect. Because the state of California was enforcing Proposition 8 at the time of trial -- and still now -- it would be extraordinary for the court to take this route.

Read Chris Geidner's entire analysis.

CALIFORNIA: AFER Files Proposition 8 Response Brief With Ninth Circuit Court

The Olson/Boies team at Americans For Equal Rights have filed their response defending Judge Walker's decision on Proposition 8.

BREAKING: Ninth Circuit Court Grants Stay Of Prop 8 Overturn Pending Appeal

No same-sex marriage for California, for now. Via Rex Wockner, here's the legalese:

Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants' motion for a stay of the district court's order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED. [7441574] (JS)

This may get to the Supreme Court yet.

Guest Post - Evan Wolfson

Evan Wolfson is the founder and executive director of Freedom To Marry.

What's Next In The Battle Against Prop 8?

Thursday kicked off another emotional rollercoaster for many California couples as U.S. District Court Chief Judge Vaughn R. Walker rejected a permanent stay of hisAugust 4th ruling striking down Prop 8, but allowed a grace-period for the Ninth Circuit appellate court to decide whether to grant its own stay or let marriages resume on August 18th. Both sides of this issue have filed their motions in response to Judge Walker’s ruling, and now the Ninth Circuit seems poised to rule on the stay before August 18th, perhaps as early as today.

If the Ninth Circuit denies the request for a stay, the anti-gay Prop 8 forces could then ask the United States Supreme Court to issue one. Such a request would be directed to Justice Anthony Kennedy, who could either rule himself or submit it to the full Supreme Court. There are several other permutations possible, including the Ninth Circuit issuing a stay while it considers the appeal, or quick denials all around leading to marriages resuming soon. We’ll have to see how it unfolds; hence, the nerve-wracking suspense and high emotions.

Meanwhile, though, there was a lot to celebrate in Judge Walker’s ruling.

Much like his initial decision declaring Proposition 8 a violation of the Constitution’s guarantees of equal protection and due process (the freedom to marry), Judge Walker’s ruling was thorough, solid, and smart. He noted that, once again, the Prop 8 proponents failed to show any evidence, or provide any clear explanation, of how they are harmed if same-sex couples share in marriage. Judge Walker noted, in fact, the state of California itself has said it doesn’t wish to appeal and doesn’t even want a stay. As Governor Arnold Schwarzenegger and Attorney General Jerry Brown put it, California has no interest in discriminating and marriage for same-sex couples “is consistent with California’s long history of treating all people and their relationships with equal dignity and respect.” The Prop 8 proponents, who intervened to defend the law in Judge Walker’s courtroom, may not even have standing to bring an appeal, given that they are private citizens who have nothing to do with the administration of marriage and, as Judge Walker remarked in my favorite line, have not “alleged that any of them seek to wed a same-sex spouse.” Since they may not even have standing to drag out the case, the Ninth Circuit may conclude there is no appeal.

While emotions are high and the twists in the road are wrenching, we must not spend our time obsessing over the things we can’t control and should focus instead on what we can. Specifically, we can control whether we use every powerful argument and evidence assembled by Judge Walker to make the same powerful case for the freedom to marry in the court of public opinion that we are making in the courts of law. Courts don’t operate in a vacuum; creating a climate and momentum is as important to winning a court case as writing excellent briefs, and it is something we can all contribute to right now.

We don’t yet know how Prop 8 will ultimately fall – whether through this court case or by going back on the ballot as soon as 2012. The work we do now to solidify a majority in California by breaking our silence and asking the non-gay people in our life for support will maximize our chances of winning either way.

For the rest of us throughout the country, last week we racked up our first-ever nationwide poll showing that a majority of Americans now favor the freedom to marry and that the opponents of liberty and equal protection for gay people are in the minority. If we can persuade Bill Clinton, Laura Bush, and even the likes of Glenn Beck to make the journey from opposition to support, then we surely keep barreling down all three tracks of Freedom to Marry’s Roadmap to Victory, which calls for winning more states, securing a majority for marriage, and ending federal marriage discrimination. Whether we win back California next week, or have to keep working at it with one eye on the courts, one eye on the ballot, and both eyes on the prize, the momentum spurred by Judge Walker’s powerful ruling is ours to use in the nationwide persuasion needed now. Let’s use it.

-Evan Wolfson

Ninth Circuit Responds To Stay Motion

Things are moving VERY quickly. Brian Devine reports at Courage Campaign:

The Ninth Circuit just issued an Order stating that the Plaintiffs’ response to the Motion to Stay is due by 11:00 p.m. tonight. The Prop 8 supporters’ reply, not to exceed 15 pages, is due by 9:00 a.m. on Monday, August 16, 2010. This suggests that the Ninth Circuit is preparing to rule on the Motion to Stay before Judge Walker’s temporary stay expires on August 18th at 5:00 p.m. It’s surprising that the Court only gave the Plaintiffs about 9 hours to file their brief, and gave the Appellants until Monday to Reply. But I wouldn’t read too much into this. They know that everyone anticipated the Motion and that everyone’s briefs are essentially written already.

Sounds like everybody wants to get to Hawaii.