Perry v. Schwarzenegger

The effort by proponents of California’s anti-gay marriage law, Proposition 8, to invalidate last year’s federal court opinion finding it unconstitutional because the judge who issued the opinion is gay reveals the wobbly arguments against marriage equality, writes UCLA law professor Adam Winkler.

In this piece for The Huffington Post, Winkler says “ironies abound” over the marriage equality opponents’ arguments that the opinion should be invalidated because Judge Vaughn R. Walker (pictured), now retired, “stood to gain personally from ruling in favor of same-sex marriage.” That is, Winkler notes, if California were to recognize same-sex marriage, Walker might be “able to take advantage of that opportunity and secure any and all of the benefits that accrue from marriage.”

Winkler continues:

Writing in the National Review Online, conservative legal commentator Ed Whelan admits that marriage is a "valuable legal right." That is correct -- and exactly why states shouldn't be able to deny gays and lesbians the ability to marry. It's a violation of the Constitution's command that all people be afforded "equal protection of the laws" to deny people fundamental rights on the basis of irrelevant characteristics, like their race, sex, religion, or sexual orientation. Yet that is precisely what the ban on same-sex marriage does.

Implicit in Proposition 8 supporters' effort to recuse Judge Walker is the notion that, unlike a gay judge who might benefit from marriage, a heterosexual judge would be impartial. But to accept that notion, we must reject another central claim in the case against same-sex marriage: that gay marriage undermines the traditional institution marriage.

U.S. District Court Judge Vaughn R. Walker, who ruled last year that California’s anti-gay marriage law Proposition 8 violates the constitutional rights of lesbians and gay men, has been wrongly maligned by conservative bloggers, writes University of Minnesota Law School Professor Richard W. Painter.  

Painter, the former White House Chief Ethics Lawyer for President George W. Bush, writes that the two National Review Online bloggers have brought the “recusal debate” to a new low.

The bloggers, Painter writes at Legal Ethics Forum, have accused Walker (pictured), now retired, “of unethical conduct because (i) they do not agree with his decision in the case, (ii) the case involved same-sex marriage in California, and (iii) Judge Walker lives in California and has a relationship with another man. Never mind that the Judge has not sought a marriage license. His hearing and deciding the case was a ‘rampant course of misconduct.’”

Painter, who does not agree with Judge Walker’s opinion in the Prop. 8 case, continues:

The absurdity of this claim is obvious. The mere fact that a judge belongs to a class of persons affected by a case does not require recusal. If this were the rule, women judges could not sit on sex discrimination cases – and neither could men judges for that matter. Black judges could not sit on race discrimination cases – and neither could white judges. And so on. Wrong.

…

What is unfortunate is that the argument here is not only ludicrous, but that the National Review bloggers have framed it in language that shows their own bias – both against a highly regarded federal judge and against an entire class of persons.

Judge Walker, who was appointed to the bench by President Ronald Reagan, should take comfort in the fact that he is in good company. The same tag team of bloggers has attacked the lawyer in the same case, famed GOP litigator Ted Olson who argued and won Bush v. Gore.

The case, Perry v. Schwarzenegger, is pending before the U.S. Court of Appeals for the Ninth Circuit.