Just to recap.
Prop 8 was a California ballot initiative that banned same sex marriages in California. Well-funded by out-of state bigots (like the Mormons), it narrowly passed in 2008.
But then Prop 8 was challenged in state court for being unconstitutional. But the California courts upheld Prop 8.
After the California Supreme Court upheld the voter initiative, another suit, Perry v. Schwarzenegger, was filed in a Federal District Court in San Francisco. On August 4, 2010, U.S. District Chief Judge Vaughn R. Walker overturned Proposition 8 as being unconstitutional. He also stayed his own ruling; the voter initiative was to remain in effect pending appeal.
The case is kicking around the Ninth Circuit Court of Appeals. The particular issue is standing. You see, the State of California refused to support Prop 8, so the people who are defending it are citizens groups. And there is a question as to whether citizen groups have standing to defend a proposition.
In the meantime, however, another suit was filed to attack Perry v. Schwarzenegger collaterally. Specifically, on April 25, supporters of Proposition 8 filed a motion in district court to vacate Walker's decision in Perry. Walker, who is now retired, has admitted that he is gay. Prop 8 supporters argue that Walker should have recused himself or disclosed his relationship status, and that unless he "disavowed any interest in marrying his partner", he had "a direct personal interest in the outcome of the case".
The hearing on that motion was yesterday; a decision is expected today.
As a preview, let me say this:
The Prop 8 supporters have a very weak argument. First of all, black judges can hear cases involving discrimination; women judges can hear cases that may have an impactg on womens' rights. This has always been the case. The Prop 8 supporters are weilding an argument that, if it succeeds, would change the face of the law forever. You simply can't ASSUME that a judge is impartial simply because he is a member of a group that MIGHT be affected by the outcome of a case. Even the folks at Fox grasp this:
The other reason why the Prop 8 supporters are likely to lose today is because Judge Walker wrote a 138 page opinion. And guess what it doesn't say? It doesn't say:
I am siding with the anti-prop 8 people because I am gay.
That's right. He actually gave 138 pages of reasons why Prop 8 was unconstitutional.
And the Prop 8 people lost because they were TERRIBLE in court. Look at page 11 of the opinion. It reads:
At oral argument on proponents' motion for summary judgment, the court posed to proponents' counsel the assumption that "the state's interest in marriage is procreative" and inquired how permitting same-sex marriage impairs or adversely affects that interest. Doc #228 at 21. Counsel replied that the inquiry was "not the legally relevant question," id, but when pressed for an answer, counsel replied: "Your honor, my answer is: I don't know. I don't know." Id at 23. Despite this response, proponents in their trial brief promised to "demonstrate that redefining marriage to encompass same-sex relationships" would effect some twenty-three specific harmful consequences. Doc #295 at 13-14. At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn's testimony is addressed at length hereafter; suffice it to say that he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate. During closing arguments, proponents again focused on the contention that"responsible procreation is really at the heart of society's interest in regulating marriage." Tr 3038:7-8. When asked to identify the evidence at trial that supported this contention,proponents' counsel replied, "you don't have to have evidence of this point." Tr 3037:25-3040:4.
Now look at page 38 of Judge Walker's opinion. Here Judge Walker is noting the paucity of the evidence supporting Prop 8. Keep in mind that side is called the "Proponents" (as in, the Proponents of Prop 8). Judge Walker wrote:
Proponents elected not to call the majority of their designated witnesses to testify at trial and called not a single official proponent of Proposition 8 to explain the discrepancies between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court. Proponents informed the court on the first day of trial, January 11, 2010, that they werewithdrawing [here the judge lists four witnesses]. Doc #398 at 3. Proponents' counsel stated in court on Friday, January 15, 2010, that their witnesses United States District Court because they "were extremely concerned about their personal safety, and did not want to appear with any recording of any sort, whatsoever." Tr 1094:21-23. The timeline shows, however, that proponents failed to make any effort to call their witnesses after the potential for public broadcast in the case had been eliminated.
This is why the Prop 8 team was routed at trial. It wasn't Judge Walker's evil gay bias. It was because the proponents of Prop * failed — miserably — in court.
So I expect today's decision to be a slam-dunk win for the anti Prop 8 (pro- same sex marriage) crowd).
UPDATE: The transcript from yesterday's hearing on the motion to vacate indicates that the Prop 8 lawyers (once again) didn't have very good arguments and were taken to town by the presideing judge (Judge Ware). An example:
Judge Ware: What is fact you rely upon that judge walker was in a relationship for purposes of marriage?
Charles Cooper (attorney for the Prop. 8ers): The fact that he has publicly announced that he is and has been in a relationship with another person? [laughter]
Judge: So if you are in a ten year relationship with another person, that is for purposes of marriage? You would concede that you could be in a long term relationship without being in it for purposes of marriage?
Cooper: Yes.
Judge: What distinguishes it?
Cooper: Very fact that two individuals are in kind of relationship Walker has…
Judge: What distinguishes between two?
Cooper: There are platonic friendships that do not lead to marriage. [laughter]
Judge: What do you mean, ‘platonic'?
Cooper: Non-intimate, non-sexual. Clear understanding of media reports…
Judge: You are saying that length of relationship alone converts to marriage relationship?
Cooper: Yes. Bespeaks commitment. All of these have been used interchangeably. The plaintiffs take pains to say they are in long term relationships.
Judge: The plaintiff’s relief was not to stay in a long-term relationship. Nothing threatened their long term relationship. Neither they nor Walker were threatened. The plaintiffs sought to change relationship. What fact would you cite to the court to show that Walker sought to change his relationship?
Cooper: [Stumbles…] There are several points I would make that a reasonable person with knowledge that Judge walker would be expected to have an interest in marrying his long time partner. Judge Walker similarly situated for purpose of marriage just as plaintiffs.
Another excerpt:
Judge Ware: You keep saying that Walker has an interest in getting married. Is that what you are saying?
Cooper: If he has an interest in marriage, …
Judge: You repeated it again. I hear me. I recognize my voice. I’m not sure you hear yours.
Cooper: Let’s back up. The ten year relationship means he was bound to disclose. Also, he must disclose that he is similarly situated to plaintiffs.
Judge: You’ve raised the disclosure question many times. You seem to say that judge is required to disclose. In a case where race is involved, sometimes disclosure not made because race is obvious. We are bound by our past, which is largely irrelevant.
If a female judge has suffered rape or sexual assault and is hearing a case on rape or sexual assault, must she disclose?
Cooper: That’s a tough question. I don’t see how her direct interest would be affected.
Judge: That’s not the question. Would a reasonable person object?
Cooper: It is closer call whether or not reasonable person in possession of all facts whether judge’s impartiality disclosed.
Judge: You would have me rule that judges disclose intimate details of their past such as being abused as child and should not be presumed capable of fulfilling their duty.
Cooper: A judge would have to disclose if the parties think its’ relevant. It’s a broad standard, and includes information that the judge might believe himself would not rise to meritorious recusal. The cases are quite clear. The judge’s responsibility quite broad.
Judge: In this case, Judge Walker need not to have disclosed orientation.
Cooper: That is true. We have made that clear from beginning when first news reports surfaced.