The fight against Proposition 8 continues!

Originally published June 14th, 2011 , 1:09 pm

I just received word that U.S. District Court Judge James Ware denied a motion to vacate by the Yes on [Proposition] 8 folks, attacking U.S. District Judge Vaughn Walker’s failure to recuse himself from hearing the Proposition 8 case because he is gay and in a long-term relationship with another man.

This motion represented a wholesale attack on the judiciary because in essence it was argued that a judge could not put aside his or her personal feelings or situation to apply and follow the law.  Commentators have noted that a ruling finding Judge Walker incapable of deciding the case because of his sexual orientation would have far-reaching effects on other cases.  But before we go there, let’s consider this:  would a judge who was heterosexual and married also have a bias because he or she might be in favor of marriage between heterosexual partners?  Would a Christian judge also have a bias that would preclude hearing the case?  And what about a judge who never married?  The list could go on.

The truth is that we have biases or, shall I say, preferences.  It just seems to go along with human nature.  When a case is assigned, most attorneys research a judge to determine whether those “preferences” will have an impact on deciding cases.  Some judges are known for having a bias against women, plaintiff’s attorneys, high profile cases, etc.  I have known a few judges who were biased against young attorneys or attorneys who didn’t pay the judge the proper respect.  From time to time, those biases might surface in communications or rulings, but for the most part, the judge was still bound to follow the law.  And if he or she didn’t, then an appeal would almost certainly follow.  Sometimes those biases rise to a level that attorneys will attempt to disqualify a judge from hearing a case.

But it seemed in this situation the moving party was looking at sexual orientation as the basis of overturning Judge Walker’s decision.  To have granted this motion would have opened the door and encouraged others to search through a judge’s personal life, without any indication of prejudicial misconduct, to find some “proof” of bias.  I am happy to report that Judge Ware did not buy it.