Well, the rumors that Judge Vaughn Walker were out there for a long time, and he never really denied it.  The Chronicle, among others, published that information during the trial, and it was basically an known fact.  However, Judge Walker has now acknowledged that he has been in a long term relationship with a man, and that apparently is entirely different.   He might, you know, be interested in marrying some day, and so the thought processes of the Prop 8 attorneys goes, he should have recused himself from the case.  They’ve filed a motion saying just that and asking for a new trial.

Eight months later, Proposition 8’s proponents and their attorneys have taken a new position. They filed a motion Monday seeking to vacate Chief U.S. District Judge Vaughn Walker’s historic ruling, a move they said was prompted by the now-retired jurist’s recent disclosure that he is in a long-term relationship with another man.

Lawyers for the ban’s backers argue that the judge’s relationship status, not his sexual orientation, gave him too much in common with the couples who successfully sued to overturn the ban in his court. The judge should have recused himself or at least revealed the relationship to avoid a real or perceived conflict of interest, the lawyers say.(Sac Bee (AP))

This is really rather incredible.  First, they are essentially arguing that only those who are unaffected by civil rights cases can hear those cases.  So…diversity, yeah, that’s a waste of time.  Our bench should just be white straight men (WSM) so that they can hear all the cases. Never mind that we all bring a perspective to our daily life, only WSMs are unbiased enough to hear civil rights cases.  And really, we should be looking into some of those WSMs as well.  Gender discrimination case? Well, that WSM has a daughter who might have been excluded, better eliminate him too.  You know, maybe we should just go to a court judged entirely by people locked up in a room, so that they don’t have any other interests.  We can raise children from the age of 5 in a state of unattached freedom, so that they never care about anything, and then they can grow up to be our judges.  How does that sound?

Of course, it is pretty hard to imagine that this will actually go anywhere:

Indiana University Law School professor Charles Geyh, an expert on judicial ethics, said that without more evidence that Walker stood to personally benefit if same-sex marriages were legal in California, he found it difficult to imagine that the particulars of the judge’s same-sex relationship provided gay marriage opponents with an avenue for reversing his ruling.

“It really implies it would be fine if he were essentially surfing at bars and had a new partner every night because he wouldn’t want to be married,” he said. “I don’t see that as advancing their cause.”(SacBee (AP))

In the end, Prop 8 isn’t about stable relationships, or encouraging the reasonable public policy of rewarding that stability.  No, it is a punitive measure against those that they don’t like.  It is simply homophobia, and it doesn’t belong in California, and it doesn’t belong in our nation.

UPDATE: I’m a big fan of the dean of UC-Irvine’s nascent law school, Erwin Chemerinsky.  He really knows how to get to the nub of an argument, and explain it to you in a very real way.  Here is an example of that:

“I know of no instance in which a judge has been disqualified because of his or her race, religion, sexual orientation or gender,” Chemerinsky told TIME. “This would mean that no African-American judge could have heard a challenge to segregation laws or no woman judge a challenge to a law discriminating based on sex. No court ever has suggested any such thing, nor will it. This is simply a personal attack on Judge Walker in an effort to embarrass him. As was said in another context long ago, Have they no shame?” (Time Magazine)

Brian already discussed the standing and jurisdiction arguments in Part One, and frankly, as an attorney, those arguments really shocked me the most in this brief. I'll not go back over them, but when I read it I was, quite literally, laughing out loud.  I had to read it a couple of times, and Brian didn't really believe me that they were really making the jurisdiction argument.  Make it they did though.

The brief is long.  Very long.  134 pages including the tables, 113 pages from introduction to conclusion.  The Court defines a page limit, but those are traditionally relaxed when asked. But, when you are turning in briefs this long, you might want to consider whether every word of this thing is necessary, but that doesn't seem to have been a big issue for the Prop 8 Crew.  Nonetheless, let's take a  look at the argument on the merits over the flip

Whistling Past the Trial

From a 30,000 foot view, there is one theme to their substantive arguments: the trial didn't happen.  Oh, sure they acknowledge that it physically happened, but the evidence that was presented there, wasn't convincing, the decisions all wrong.  You think there was evidence that Prop 8 was discriminatory? No, not really.  You think there was evidence that showed Prop 8 harmed gays and lesbians? No, not really. That it harmed the children of gays and lesbians? Nope.  That it didn't harm straight marriages? No, didn't happen.

Generally, findings of fact are due deference.  In many trials, these are the decisions that the jury will  make. But, as this was a bench trial, the judge was the fact-finder.  He determines credibility, and what he found believable.  However, Cooper, Pugno, and the gang dispose of that pretty quickly:

Although the district court ruled that Proposition 8 is irrational, that court neither complied with established principles of rational basis review nor meaningfully engaged the legal authorities and evidence before it. Furthermore, the purported findings on which its decision turns involve issues of legislative fact. For all of these reasons, the district court’s findings are entitled to no deference from this court. (Intervenor Brief at 32)

Now, this is a pretty huge simplification, and really, not true so much.  Findings of legislative fact are not sacrosanct, no matter who makes them.  While judges' findings of fact are, in practice, given a little less deference, they are still given considerable deference.  They aren't so casually disregarded, and they have to be clearly erroneous to be tossed aside.

Moving beyond the finding of facts, as we discussed during the trial, the first question is what standard of review will be used.  Judge Walker ended up going with two different standards of review. For the due process claim, which goes to the issue of the fundamental right to marry, Judge Walker said that Prop 8 was subject to strict scrutiny. However, the intervenors argue that the right to marry is fundamental only between members of the opposite sex.  So, you know, no strict scrutiny for you.

This is sure to be an issue of considerable disagreement come our sides' brief. The right to marry has been determined to be fundamental under the due process under Loving v. Virginia.  However, describing this as not applying to same-sex marriage is just as bizarre as saying that practicing Worship of the Spaghetti Monster isn't protected under the right to free exercise of religion. It may not be the norm, but rights aren't defined for simply the majority, but also to protect minorities.

Equal Protection

Now, this is where the heart of Judge Walker's decision lies.  By saying that it doesn't pass rational basis review, the question of due process strict scrutiny, or even the equal protection level of scrutiny, becomes a lot less important. As we've mentioned in the past, rational basis review is the lowest level of review, and means that the state need only a rational basis to enact the law, and that the law need only a rational connection to the stated “rational” goal.  In the decision, Judge Walker states that he believes legislation based upon orientation should be subject to strict scrutiny, but that because he found that Prop 8 didn't stand up to rational basis, it didn't really matter all that much. (Decision at p. 122)

Here, the Proponents argue once again that any “debate” whatsoever means that there is a rational basis.  The proponents have highlighted 6 “interests” that give the state a rational basis.  But, a plethora of evidence at the trial showed these reasons simply to be based in prejudice an innuendo, without any basis in fact.  As Judge Walker stated, “Tradition alone, however, cannot form a rational basis for a law,” citing Williams v Illinois, a 1970 Supreme Court decision. Reason after reason are simply thinly veiled forms of prejudice.

Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. Proposition 8 violates the Equal Protection Clause because it does not treat them equally. (Decision at 132.)

Throughout the entirety of their brief, all we see is an attempt at replaying the trial, as if it never really occurred.  Unfortunately for the proponents, the trial did occur.  In the end, this is where we are likely to see the real action of the appellate decisions, but there isn't a lot of new information for the court in this brief.

It will be an another anxious month as we wait to hear from the AFER attorneys next month in the reply brief.

This is cross-posted from the Prop 8 Trial Tracker

That’s exactly what the American “Family” Association wants to do. In an email to their supporter list, the AFA called for Congress to impeach Judge Walker for failing to conduct himself with “good Behaviour”:

Yesterday (August 4), U.S. District Chief Judge Vaughn Walker  single-handedly overturned California’s Prop. 8, which elevated  protection for one-man, one-woman marriage to its state constitution.

In doing so, he frustrated the expressed will of seven million  Californians who went to the polls to shape their state’s public policy  on marriage. …

Fortunately, the Founders provided checks and balances for every  branch of government, including the judicial branch. Federal judges hold  office only “during good Behaviour,” and if they violate that standard  can be removed from the bench. Judge Walker’s ruling is not “good Behaviour.” He has exceeded his constitutional authority and engaged in judicial tyranny.

Judges are not, in fact, unaccountable. They are accountable to Congress, which can remove them from office. Impeachment proceedings, according to the Constitution, begin in the  House of Representatives. It’s time for you to put your congressman on  record regarding the possible impeachment of Judge Walker.

Where to begin? There’s just so much crazy that is genuinely difficult to choose just one nugget. Let’s first start with the popular vote issue.  I’m hesitant to bring  this up again, because really? Really people?

Let’s talk about this.  Do we really want everything up for a popular vote? I guess it’s easy to criticize when you are the one putting up other people’s rights for a vote. But, flip the script, and what does the AFA say about it when somebody puts an initiative on the ballot limiting the number of kids you can have. I mean, limited resources and all. It worked for China, right? Right, AFA?

The larger point is that some rights are sacrosanct. They are not privileges that are earned or that should be put for a plebiscite.  My relationship should not be disfavored because a majority of California voters get squirmish, or are fearful, or are baited into fear through a $40 million scare campaign.

This of course ties directly into the question of impeachment.  “good Behaviour” wasn’t intended to be some sort of generic “the majority doesn’t like you” catch-all.  After all, there are decisions made all the time that the majority disagrees with. Yet, we don’t impeach those judges.  Heck, the entire point of the judiciary was for judges to be a check on the tyranny of the majority.  If we go around impeaching our judges because they apply the constitution simply in a way we don’t like, the entire Article III power of the judiciary will be wiped away.

Of course, this isn’t all that the AFA has said on the matter. In a right-wing online publication, they suggested that this was all in self-interest. Because, you know, Walker is gay (and doesn’t have the good grace to hide it back like those pleasant closeted gays of generations past). I’ll point them to my earlier post, “Did They Know Justice Alito is Male?” Back then, I pointed out the irony that nobody was complaining when Justice Alito was writing a ridiculously sexist opinion in Lilly Ledbetter’s case:

We all have some mix of racial, geographical, socioeconomic and other  backgrounds. And they are all mixed up with who we are. We can’t take  those labels off no matter how independent or fair you are.  Yet some  will still see this as sort of bias.

So, did anybody comment about Justice Alito’s gender when he wrote the outrageous opinion in Ledbetter v Goodyear Tire that said that under the Civil Rights Act women could not sue after 180  days from the discriminatory decision, even if they didn’t know about  the decision for years? The decision that ultimately spurred the passage  of the Lilly Ledbetter Act because it was so egregious.

Can an African-American judge not rule an issue of race? A female judge not rule on issues of gender? These ideas, of course, are patently absurd, as is the charge that Walker should have recused himself.

Yet, AFA and their allies will continue to push for the impeachment of Judge Walker and of any 9th Circuit Judges that concur with the district court’s decision, and probably for any Supreme Court Justice who dares to do the same. For the time being, their aren’t enough right-wing zealots to really push this through Congress. But elections are right around the corner, and their are quite a few of said zealots lining up to enter the halls of power.

Will Congress really take the time, even with a Republican majority in the House, to impeach Judge Walker? It’s doubtful at best. After all, “good Behaviour” was never intended to reflect a merely unpopular decision, rather to serious personal failings that would compromise his ability to be a judge. Things like taking bribes, that sort of thing. In our history, only 14 judges have been impeached, with only 6 of them being convicted.  This is not to be done lightly, or for mere disagreements on issues for which reasonable minds can disagree.

But the AFA and their friends are on a rampage. They want blood, and they are going to demand that right-wing Representatives in Congress pick away for it.  I suppose this just reiterates the importance of our involvement in not just the judicial process, but always being mindful that we can never forget about the political process.

( – promoted by Julia Rosen)

It’s election day in California and several other states.  With the exception of one statewide race, (AG) Democrats and progressives won’t be compelled to the polls.  Republicans will because of the battle of the billionaires (okay, one billionaire two multi-millionaires).  We can only hope that enough of us vote(d) to beat back two odious ballot measures put on by two big corporations.

But there was already big news today in California about “the trial of the century.”  Judge Vaughn Walker today issued a series of questions for the parties to the federal Prop. 8 trial that began in January and was put on by Ted Olson and David Boies and colleagues and defended by the oxymoronic “Protect Marriage” proponents of Prop. 8.  

The questions are stunning in their breadth, complexity and essence.  Here are just a few:

What empirical data, if any, supports a finding that legal recognition of same-sex marriage reduces discrimination against gays and lesbians?

What are the consequences of a permanent injunction against enforcement of Proposition 8? What remedies do plaintiffs propose?

If the evidence of the involvement of the LDS and Roman Catholic churches and evangelical ministers supports a finding that Proposition 8 was an attempt to enforce private morality, what is the import of that finding?

The court has reserved ruling on plaintiffs’ motion to exclude Mr Blankenhorn’s testimony. If the motion is granted, is there any other evidence to support a finding that Proposition 8 advances a legitimate governmental interest?

Why is legislating based on moral disapproval of homosexuality not tantamount to discrimination? See Doc #605 at 11 (“But sincerely held moral or religious views that require acceptance and love of gay people, while disapproving certain aspects of their conduct, are not tantamount to discrimination.”). What evidence in the record shows that a belief based in morality cannot also be discriminatory? If that moral point of view is not held and is disputed by a small but significant minority of the community, should not an effort to enact that moral point of view into a state constitution be deemed a violation of equal protection?

What does it mean to have a “choice” in one’s sexual orientation? See e g Tr 2032:17-22; PX 928 at 37

I am not a lawyer, but I can without doubt say that never before has homosexuality been on trial in America in this way.  The testimony in January, which I liveblogged, was breathtaking and so sweeping, that the defense (the folks who put Prop. 8 on the ballot) were left with only one argument: marriage has always been between a man and a woman so it should always be between a man and a woman.  And Professor Cott and other experts even destroyed that argument.  Even so, it’s a bit like saying that some people were always forced to live in a certain place so they should always be forced to live there.

We launched Testimony: Equality on Trial because this court case has already changed history.  As we can see from the Judge’s questions – read them and pick your own favorites–the entire scope of the debate has been encapsulated in this trial.  But the defense has worked at every juncture to stop you from seeing what happened and will happen in the courtroom.  We seek to make this your trial.  And soon, we’ll seek to hear your testimony.

For now, as voting for initiatives and candidates across the state and country winds to a close, we can see unfolding the true story of human rights in America.  

Watch the court. Whatever the ruling, this trial is history.

UPDATE:  You can join us for a Courage Campaign Conversation with Ted Olson Wednesday at 6::00PM PDT to learn more.