“So a married judge could never hear a divorce?” [Judge R. Randy] Smith asked.
“Your honor, I don’t see the difficulty with a married judge hearing a divorce action,” Cooper answered.
Smith replied: “Would he have to disclose, ‘Oh, I’ve been married, and we’ve been married for 24 years and we have a relationship that’s kind of difficult’? That’s what you are arguing here?”
Cooper said the hypothetical situation Smith described was different because if Walker, who is now retired, had “desired to marry his partner, he would have stood in exactly the same shoes as the plaintiffs in this case.”
David Boies, a lawyer representing the two same-sex couples who successfully sued to strike down Proposition 8 in Walker’s court, attacked Cooper’s reasoning, arguing that judicial ethics rules never have required judges to bow out of civil rights cases because they are members of the minority group whose constitutional rights are at issue.
Cooper’s “perverse logic is that only judges, gay or straight, who have no interest in marrying and the institution of marriage would be the only ones who could hear this case,” Boies said. “A heterosexual judge may feel passionately about preserving the institution of marriage. Does that judge have an obligation to volunteer, to come forward, to tell the parties what his views of marriage are and his views of the institution of marriage?”
As Ian Millhiser has noted, “if a court were to accept the anti-gay group’s arguments, it would also follow that no judge who is presently in a committed opposite-sex relationship would be allowed to hear this case either. The name of the organization defending Prop 8 is “Protect Marriage,” a name that derives from their bizarre belief that same-sex marriages are destructive to opposite-sex marriages. But if this were true, than straight judges would have a personal stake in ensuring that their own marriages are not undermined by a decision striking down Prop 8 — and thus would also be required to recuse.”
The 9th Circuit seemed far more inclined to side with Prop. 8 proponents’ argument for why the video tape of Walker’s trial should be kept private, however, and appeared to agree with the proponents’ claim that the judge had only “promised to use a videotape of the trial in chambers only, and that the tape was never meant to be publicly broadcast.”