Prop 8 Trial Update: To Vacate Or Not To Vacate?

This post was generated based on liveblogging from the Prop 8 Trial Tracker and various live tweets from the courtroom.

The rest of today’s Prop 8 proceedings addressed a motion by proponents to vacate Judge Vaughn Walker’s decision because he is in a long-term same-sex relationship and would thus benefit from ruling in favor of same-sex marriage. The proponents’ lawyer, Charles Cooper, argued that there is a distinction between Walker’s sexual orientation and intention to marry and that they are only making a point about the latter. But Judge James Ware pointed out that there is no evidence to suggest whether Walker ever wished to marry his partner.

Ware said that he will provide a written ruling in the next 24 hours. In it, he will consider a number of other cases and hypotheticals that were brought forth about when judges should recuse themselves. Here were some of the comparisons made during the arguments:

- FEMALE vs. GENDER DISCRIMINATION: In the mid-1970s, Judge Constance Baker Motley was assigned to adjudicate Blank v. Sullivan & Cromwell, a class action gender-discrimination suit. She was asked to recuse herself because she was a woman and had been an attorney. She declined, giving this rationale: “If background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others, by virtue of the fact that all of them were attorneys, of a sex, often with distinguished law firm or public service backgrounds.”

- JUDAISM vs. MUSLIM TERRORIST: In 1994, Judge Michael Mukasey was asked to recuse himself from the trial of Ibrahim A. Elgabrowny because of his Zionist Judaism. Elgabrowny was a Muslim charged in the 1993 bombing of the World Trade Center. Mukasey chose not to, citing other cases where charges of bias failed: “The objection here is not based on race or sex or the Mormon religion, but the motion in this case is in all relevant ways the same as the motions in those cases. It is the same rancid wine in a different bottle.”

- BLACK vs. CIVIL RIGHTS: During the trial, Ware asked Cooper if he felt a black judge should recuse himself from a civil rights case. Cooper said that alone would not constitute bias.

- GAY vs. DON’T ASK DON’T TELL: Cooper introduced the idea of a gay judge ruling on Don’t Ask Don’t Tell, but then conceded that a gay identity alone would not be enough to bias the judge.

- PREVIOUS SEXUAL ASSAULT vs. SEXUAL ASSAULT: Ware made the point that judges might not have to disclose their race because it might be visually apparent, but what about a judge who had a history of sexual abuse? Ware asked Cooper whether a judge should have to disclose personal experience with sexual assault when ruling in case about one. Cooper admitted that, according to his argument against Walker, yes, a judge should disclose relevant intimate details.

- CATHOLIC vs. ABORTION: Therese Stewart, arguing on behalf of San Francisco, pointed out that a judge’s Catholic identity would not preclude him or her from ruling on a case about abortion. (Given that many of the Supreme Court Justices are Catholic, this particular example might carry more weight.)

- FAMILY PLANNING vs. CONTRACEPTION: Stewart also pointed out that in a case about contraception, by Cooper’s logic, a judge would have to disclose any history of family planning or use of contraception.