Ruth Institute Blog

I listened to Ms. Morse’s radio interview about the Prop 8 decision and it’s unfortunate she has so little understanding of the trial and how our legal system works. Judge Walker reached a decision that was unavoidable, given the paltry defense put on by Charles Cooper and team. They offered to evidence for how same-sex marriage could be detrimental to society, while the Prop 8 plaintiffs offered a mountain of evidence for why same-sex marriage is beneficial to society. The legal system isn’t interested in religious arguments or “common sense,” Ms. Morse. And Judge Walker did not say his ruling couldn’t be appealed, he said that, according to the rules of standing in the Appellate Court, the Prop 8 defendants probably don’t have standing. The Appellate Court apparently agrees with him, as they has asked the Prop 8 defendants to explain up front why they think they have standing to appeal, given the lack of harm done to them if Prop 8 is struck down.

Ok, I just listened to the “Mama Grizzlies” radio interview and Ms. Morse’s observation about the irony of the National Organization for Women attempting to speak for all women is no less than the irony of the National Organization for Marriage attempting to act like it supports marriage when in fact it is against marriages it doesn’t sign off on. Talk about irony!

What is wrong with these people? I don’t mind these fringe groups trying to earn a buck but can’t they get any of their facts straight?

Of course the judge had to ignore Baker v. Nelson which is the case on point, and come up with a new legal theory which had escaped the notice of previous courts. He is the wrong judge to do it, particularly given the breadth and scope of his opinion.

“A judge is required to disqualify himself in any proceeding “in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which: (a) the judge has … personal knowledge [!] of disputed evidentiary facts concerning the proceeding; [or] … (c) the judge knows that the judge … has a financial … or any other interest [!] that could be affected substantially by the outcome of the proceeding.”

“If Judge Walker is indeed in a long-term, same-sex relationship, he certainly has an “interest that could be affected substantially by the outcome of the proceeding” – he and his partner are now permitted to marry! – and that, according to Judge Walker’s own finding, has financial benefits as well. Such conflicts would have required recusal, and cannot be waived by the parties.

“If the relationship does not create such a conflict, it nevertheless creates the circumstance “in which the judge’s impartiality might reasonably be questioned.” That ground for disqualification can be waived by the parties, but the judge must “disclose on the record the basis of the disqualification” and then only continue after the parties have agreed in writing to his continued involvement. No such disclosure and agreement occurred in this case.

“Judge Walker’s failure to disqualify himself or at least to disclose his potentially disqualifying relationship to the parties requires that the opinion in the case be vacated and a new trial conducted before a different judge. In Liljeberg vs. Health Services Acquisition Corp., the Supreme Court held that the original judgment had to be set aside 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 annul the judgment because of the risk of injustice to the parties and of undermining the public’s confidence in the judicial process.” See http://articles.sfgate.com/2010-08-11/opinion/22213940_1_parties-judge-walker-new-trial

Sean, the real irony here is that if you had listened to the talk that is the subject of this post, then it would have been perfectly clear to you why NOM believes they are supporting marriage by opposing its redefinition to include same sex-marriage. Instead you have put on an unflattering display of ignorance. I invite you to listen to the talk and THEN come back and share with us your insights. You may not agree with all of the arguments, but at least we could have an informed debate.

I listened to the podcast. If “the talk” is something else, then, no I didn’t listen to it. What I heard in the podcast was a desperate woman grasping to hold to a losing battle. I realize there’s money at stake here: opposing marriage equality is some people’s jobs. But seriously, to say the judge tried to stop an appeal is ludicrous. He merely noted, using his knowledge of the appeals court process, that the Prop H8 defenders probably don’t have standing to appeal. And the Appeals Court seems to agree with him, as they are asking the Prop H8 defenders to explain why they think they have standing. Hysterical ravings about “6,000 year old institutions” or “because God wants it!” just make you people look foolish.

@Sean
I am no legal expert so I can’t speak to technicalities of stand. The podcast I was referring to is the first one listed in the post: Marriage and Freedom in Society.

How could Walker grant the pro-8 litigants standing for his district court trial but not grant standing for appeal of the result of that same trial?

If they do not have standing to appeal what they litigated, then, the trial should not have taken place for lack of a controversy.

On that basis, the appeals court can quash Walker’s result.

But the anti-8 litigants want it both ways: heads they win and tails the CA marriage amendment loses.

Walker went ahead with a trial rather than summary decision because without his indulgent fact-finding mission Walker would not have had the opportunity to transform the disctrict courtroom into a stage for his policy preference.

A preference he now presumes to be beyond the reach of appeal through the judicial system in which he abused his role as judge. And abused much else.

If he really has an axe to grind regarding his preference for imposing or enacting SSM in federal law, then, he ought to have resigned and ran for elected office where his argument, such as it is, might be presented with the support of an electorate which, in its district, had elected him to office. But to do that he would have to appeal to the very people he has disparaged in his courtroom and in his written opinion on this matter.

Chairm,

Judge Walker could win an election in San Francisco, where he is based. He would be less likely to win an election elsewhere.

If his decision can’t be appealed on the basis of a lack of standing, it cannot become the controlling federal precedent nationwide. The current controlling federal precedent is Baker v. Nelson, which will continue to be the case until the Supreme Court decides to rehear the issue. Sooner or later the issue will wind up again before the Supreme Court, but the case might be argued on an entirely different basis, and the Supreme Court might be happy to let the issue simmer for a while. California will have a new governor since the current governor (Schwarzenegger) is term limited. The GOP candidate (Whitman) has pledged to support Proposition 8 in the courts. The Democratic candidate (Brown) has pledged not to. The race is considered to be close at the moment.

If the GOP gains seats in the Senate, as appears likely, or if the GOP captures the White House in 2012, the future make up of the Supreme Court could change, quite possibly resulting in a court tilting more to the right.