Heterosexual Supremacists Appeal Judge Ware Ruling

Good grief! The heterosexual supremacists who believe that they are "defending marriage" by supporting Proposition 8 in federal court have appealed Federal District Court Judge James Ware's decision denying their motion to vacate Judge Vaughn Walker's ruling which struck down the measure.

The San Francisco Examiner says:

Attorneys for Prop. 8 filed their appeal this afternoon before the 9th U.S. Circuit Court of Appeals, the same court that is hearing an appeal of Judge Vaughn Walker’s ruling last August that the law unconstitutionally violated the civil rights of gays and lesbians.

Earlier this year, Prop. 8 sponsors had asked Ware, Walker’s replacement as chief justice, to throw out Walker’s ruling because of an interview he did with reporters in April, after his retirement, during which he discussed his long-term relationship with a gay man. They argued that Walker should have disclosed the relationship and whether he intended to marry before last year’s trial.

Attorneys for the same-sex couples who sued over Prop. 8 argued at the time that the motion was “frivolous” and “offensive.”

Ware denied the motion, saying there was no federal precedent for disqualifying a judge solely because he shares a characteristic, such as sexual orientation, with a litigant.

It should be interesting to see which case they lose first, the Perry v Schwarzenegger lawsuit (the appeal of Judge Ware's ruling) or the Perry v Brown lawsuit (the appeal of Judge Walker's ruling). I expect they will lose them both.

Federal Judge Denies Motion To Vacate Prop 8 Ruling

In an unsurprising move, Federal Judge James Ware has summarily dismissed the motion to vacate last year's ruling striking down Proposition 8 filed by the heterosexual supremacist supporters of the 2008 ballot measure which ended marriage equality in California.

You can read the full text of the Motion to Vacate here.
Denial of Motion to Vacate 06-14-2011

Judge Ware To Rule On Prop 8 Motion To Vacate Tomorrow

Federal judge James Ware, chief judge of the U.S. District Court for the Northern District of California, says he will rule tomorrow on a desperate motion to vacate last year's decision in Perry v. Schwarznegger striking down Proposition 8 as unconstitutional because the federal judge who issued it, Vaughn Walker, is openly gay and should have disclosed that fact at the time. Walker was previously chief judge of the same district but retired at the end of February 2011.

The motion by the heterosexual supremacist proponents of Proposition 8 has been widely ridiculed by the vast majority of legal experts and on the editorial pages of major newspapers.

It should be a delightful to read Judge James Ware's decision tomorrow. In other news, the judge has also said that he will deny the motion of the proponents to attempt to collect all the videos of the trial's witnesses and order them destroyed. Our side is arguing that the testimony is  a public record (the transcripts are available from the court) and that the entire video record should be released. There is some important, powerful testimony from expert witnesses explaining the nature of marriage and demolishing the arguments of the heterosexual supremacists that they would dearly not like to get into public view. I dearly hope the videos of the Prop 8 trial "leak" at some point in the future.

LA TIMES Editorial Eviscerates ProtectMarriage Argument

Dismissing an argument that even heterosexual supremacists should have been ashamed to make in their increasingly desperate attempts to not lose the Perry vs. Brown lawsuit, today's Los Angeles Times op-ed titled "Prop. 8: Who's fit to judge?" eviscerated the motion to vacate filed by Protect Marriage attorney Charles Cooper on Monday:

Married judges rule on divorce cases all the time. So do single judges. And divorced ones. Their rulings aren't challenged on the grounds of their marital status; that would obviously be ridiculous.


Yet ProtectMarriage, the group that sponsored Proposition 8, is challenging last year's ruling by Chief U.S. District Judge Vaughn R. Walker that declared the same-sex marriage ban unconstitutional. The group's lawyers argue that because Walker has a longtime male partner, he was unfit to render a decision on Proposition 8. If one day he should want to marry, the argument goes, he might benefit from his own decision, assuming it survives the scrutiny of higher courts.


This claim is absurd on many levels, especially when you remember that ProtectMarriage's case against same-sex marriage is that it threatens the institution of heterosexual marriage. In fact, the group says, that damage gives it the legal status to challenge the initiative, because any married heterosexual is allegedly harmed by same-sex unions. But if that's the case, then by the group's own logic, married heterosexual judges would also be forced to recuse themselves; the integrity of their own marriages could be damaged by the matter before them.


According to this line of argument, former Chief Justice Ronald M. George, a married heterosexual, would not have been able to preside over the California Supreme Court case in which same-sex couples sued to overturn an earlier ban on same-sex marriage. George wrote the majority opinion setting out the reasons why the ban violated the state Constitution.


So then, perhaps, only an unmarried judge who has sworn never to wed could hear cases about same-sex marriage. Or any marriage at all. An African American judge could never hear a race-discrimination case. And no female judge could decide a lawsuit on gender discrimination. Or a male one either.


The guidelines for judicial recusal can be unclear at times, but generally the bar is a high one. The rules call for judges to disqualify themselves when their impartiality might reasonably be questioned, but they are not supposed to back away from cases because of who they are — their ethnicity, gender, marital status, affluence, political leanings or, yes, sexual orientation. It's another matter if they are directly and materially affected, or if they have previously displayed a deep-seated bias on the issue at hand. A judge who drives a gas guzzler can still hear a lawsuit against an oil company, but not if his or her spouse works for the oil company.


Had Walker been one of the activists fighting Proposition 8, or if he had repeatedly sought a marriage license and been rejected, ProtectMarriage would have valid claims of conflict of interest. The group's assertion that a gay judge in a relationship is less able than a heterosexual married judge to render a fair decision on a sexual-orientation case says more about the pervasiveness of discrimination against homosexuals than it does about Walker's fitness to hear the matter.

READ: Prop 8 Supporters' Motion To Vacate Due To Gay Judge

Prop 8 Supporters'' Motion to Vacate Judgment

Heterosexual Supremacists File Motion Over Prop 8 Judge's Sexuality

Charles Cooper, lead counsel for "Protect Marriage" (sic)
 in the Propositiopn 8 federal lawsuit 

Charles Cooper, the virulent heterosexual supremacist who has been arguing against marriage equality for nearly two decade, filed a motion late on Monday with the 9th U.S. Court of Appeals to vacate Judge Vaughn Walker's historic decision striking down Proposition 8 on federal constitutional grounds because Walker revealed recently that he has been in a same-sex relationship with a man for 10 years.

Of course, this is a ridiculously bigoted motion. The implication is that an open;y gay judge can not fairly judge a case involving gay rights, a Black or Latino jurist could not judge a civil rights case fairly and female judges could not make decisions about abortion rights!

Lambda Legal  released a press release in response:

"Proponents of Proposition 8 certainly are getting desperate."

(San Francisco, April 25, 2011) — In reaction to today's filing of a motion
to vacate last year's historic decision by U.S. District Court Judge Vaughn
Walker declaring California's Proposition 8 unconstitutional, Jon Davidson,
Legal Director for Lambda Legal, issued the following statement.

"Proponents of Proposition 8 certainly are getting desperate.  This reeks
of a hail-Mary attempt to assail Judge Walker's character because they are
unable to rebut the extremely well-reasoned ruling he issued last year.
It's becoming a sadly typical move of the right:  don't like the ruling;
attack the referee."

To say that Judge Walker's should have disclosed his ten-year relationship
with another man or that it made him unfit to rule on Proposition 8 is like
saying that a married heterosexual judge deciding an issue in a divorce
proceeding has to disclose if he or she is having marital problems and
might someday be affected by legal rulings in the case.  Or that any judge
who professes any religious faith is unable to rule on any question of
religious liberty or, at a minimum, must disclose what his faith teaches.
Much like a suggestion that a female judge could not preside over a case
involving sexual harassment or an African American judge could not preside
over a case involving race discrimination, Proposition 8's supporters
improperly are suggesting that a judge will rule in favor of any litigant
with whom he shares a personal characteristic.

Judges hold a special and respected place in our society. Every day, they
are called upon to administer justice – in routine contract or traffic
court disputes, gut-wrenching child custody decisions, complex criminal
proceedings, and, as in this case, disputes about the basic human rights
that our Constitution is designed to protect. There may be judges who
betray their responsibilities and act with bias, but such a grave
accusation must be supported by evidence. Simply disagreeing with a
decision is not evidence that it was the result of bias. And assuming that
being in a same-sex relationship renders some judges unable to interpret
the law and do the job they have sworn to do insults both judges and
America's system of justice."

American Foundation for Equal Rights, the organization promoting the lawsuit, also has a response to Cooper's ridiculous motion:

“This motion is yet another in a string of desperate and absurd motions by Prop 8 Proponents who refuse to accept the fact that the freedom to marry is a constitutional right.  They’re attempting to keep secret the video of the public trial and they’re attacking the judge because they disagree with his decision.  Clearly, the Proponents are grasping at straws because they have no legal case.”

National Center for Lesbian Rights attorney Shannon Minter also responded:

"This is a desperate and ill-advised move that underscores their inability to defend Prop 8 on the merits. This is not likely to win them any points with the courts, who understandably do not appreciate having the integrity of judges called into question based on such outrageous grounds. This is part and parcel of the underhanded way the Prop 8 campaign itself was run-based on lies, insinuations, and unsupported innuendo."

The 9th Circuit announced there will be hearing in San Francisco on July 11 in San Francisco before District Court judge James Ware.

UPDATE 04/27/2011: The hearing on Cooper's motion has been expedited to June 13.

Hat./tip to LGBTPOV

9th U.S. Circuit Refuses To Lift Stay On Prop 8

The 9th U.S. Circuit Court of Appeals issued a ruling today refusing to lift Judge Vaughn Walker's stay on the enforcement of Proposition 8 while the ruling is appealed. Currently the California Supreme Court is considering a question of whether official proponents of a ballot measure can defend an initiative in court when the state's official representatives refuse to do so.

Here's the official text of the order from the 3-judge panel of the 9th U.S. Circuit Court of Appeals:

Having considered all of the factors set forth in Nken v. Holder, 129 S. Ct. 1749, 1756 (2009), and all of the facts and circumstances surrounding Plaintiffs’ motion to vacate the stay pending appeal, as well as the standard for vacatur set forth in Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, 472 F.3d 1097, 1101 (9th Cir. 2006), we deny Plaintiffs’ motion at this time.

The ruling means that Proposition 8 will remain in effect until after the California Supreme Court rules later in 2011 on the standing question and the 9th Circuit panel issues a ruling either accepting the standing determination from the California Supreme Court (which it does NOT have to do, since there are very different standards for standing under federal and state law) and issues its own ruling on the constitutionality of Proposition 8.

CA-AG Harris Asks Court To Lift Prop 8 Ruling Stay

Attorney General Kamala D. Harris

Wow! Yesterday I blogged about a Los Angeles Times editorial ("Same-sex weddings, now") that called for the 9th Circuit to lift their stay of U.S. District Court Judge Vaughn Walker's August 4, 2010 ruling striking down Proposition 8 from going into effect, effectively legalizing same-sex marriage in California again. I opined that I thought it was unlikely the 9th Circuit would lift the stay, even though they have effectively delayed the case by as much as 11 months by asking the California Supreme Court whether they think that under California law the proponents of Proposition 8 have the right to defend a ballot measure when the elected representatives (Governor and Attorney General) the people have refuse to do so. (This is a bizarre delay because Proposition 8 is now in federal court, and there is also a question of standing under federal law, notwithstanding whether the Proposition 8 heterosexual supremacists have standing under state law.)

Today comes word that our current Attorney General (and the former Governor Arnold Schwarzenegger) Kamala Harris agrees with the position that same-sex marriages should be legal in California while the courts wrangle and have filed papers with the 9th Circuit Appellate Court asking them to lift the stay:

Attorney General Harris said it is unlikely that an appeal will succeed in overturning Judge Walker's ruling that Proposition 8 is unconstitutional. The appeal's likelihood of success has been substantially diminished, Attorney General Harris said, "both by the United States Attorney General's conclusion that classifications based on sexual orientation cannot survive constitutional scrutiny and by this Court's certification order to the California Supreme Court, which seriously questions the Court's jurisdiction to decide the merits of the case."

In addition, Attorney General Harris said, "there is no injury that the proponents of Proposition 8 will suffer if same-sex couples are permitted to enter into civil marriages in California." But as long as the stay on same-sex marriages remains in effect, Attorney General Harris said, the due process and equal protection rights of same-sex couples will continue to be violated, perpetuating unconstitutional discrimination and making a stay of Judge Walker's ruling legally inappropriate.

"The President and the United States Attorney General have determined that they will not continue to defend the Defense of Marriage Act (‘DOMA')," Harris said, "because it enforces a classification that fails to meet the heightened standard of scrutiny that should apply for equal protection analysis under the Fifth Amendment."

The California Attorney General's long-standing position, Harris told the Ninth Circuit, is that Proposition 8 "violates the equal protection clause of the Fourteenth Amendment of the United States Constitution."

"For 846 days, Proposition 8 has denied equality under the law to gay and lesbian couples," Attorney General Harris said. "Each and every one of those days, same-sex couples have been denied their right to convene loved ones and friends to celebrate marriages sanctioned and protected by California law. Each one of those days, loved ones have been lost, moments have been missed, and justice has been denied." 

Wow. I guess elections really do have consequences. I can not imagine Republican Steve Cooley issuing such a strong statement in favor of LGBT rights.

Even if the 9th Circuit Court of Appeals does lift the stay, opponents could appeal to the U.S. Supreme Court, which almost definitely would maintain the stay.

It will be curious to see what "harm" heterosexual supremacists will tell a court that they will undergo if Proposition 8 is allowed to be in limbo pending a future court decision.

Obama Nominates Openly Gay Man To Be Federal Judge

J. Paul Oetken, 44

As MadProfessah noted last year, President Barack Obama has nominated an openly gay man, J. Paul Oetken, to be a U.S. district court judge for the Southern District of New York, one of the most prestigious and well-known courts in the country, since it covers Manhattan. Interestingly, Oetken, if confirmed by the United States Senate would not only become the second openly LGBT judge in the country, he would become the second out LGBT judge in the Southern District of New York! Deborah Batts, a Black lesbian, has been serving there as a federal judge since nominated by President Bill Clinton in 1994.

Oetken's official biography, as distributed by the White House:

J. Paul Oetken: Nominee for the United States District Court for the Southern District of New York

J. Paul Oetken is Senior Vice President and Associate General Counsel of Cablevision Systems Corporation in Bethpage, New York, a position he has held since 2004.  Prior to joining Cablevision, Oetken worked at Debevoise & Plimpton, where he was counsel from 2003 to 2004 and an associate from 2001 to 2003.  Oetken joined the White House Counsel’s Office as Associate Counsel to the President in 1999 and worked there until 2001.  From 1997 to 1999, Oetken was an attorney-advisor with the U.S. Department of Justice in the Office of Legal Counsel.  Prior to that, he worked as an associate at Jenner & Block for approximately two years.  From 1993 to 1994, Oetken served as a law clerk for the Honorable Harry A. Blackmun of the U.S. Supreme Court; from 1992 to 1993, he served as a law clerk for the Honorable Louis F. Oberdorfer of the U.S. District Court for the District of Columbia; and from 1991 to 1992, he served as a law clerk for the Honorable Judge Richard D. Cudahy of the U.S. Court of Appeals for the Seventh Circuit.  Oetken received his J.D. in 1991 from Yale Law School, and his B.A. with highest distinction in 1988 from the University of Iowa.

R. Vaughn Walker, the openly gay federal judge who struck down Proposition 8 as unconstituional, has retired as of December 31, 2010.

Hat/tip to Chris Geidner of Poliglot!