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Thread: U.S. gay judge never thought to drop marriage case

  1. #51
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    Re: Prop 8 judge admits he is gay

    Quote Originally Posted by Redress View Post
    The people backing Prop 8 in the court case did such a poor job that it is almost as if they where trying to undermine their own case. Almost no witnesses, almost no presentation and what they did present was incredibly stupid.
    Thank you for your honesty, Redress. In Walkers opinion he even stated this much. I liked his conclusion frankly. It was a well reasoned legal opinion, and he tried as best he could to seal up some holes, but it does sound in reading it that he knew full well this would go to the Supreme court. I read every single finding of fact today, and commented on each one but left the conclusion alone. It's too long to post 5 pages of comments by me, and I'm not sure it is even worthwhile as this thread seems to have lost the interest of DP members, less the usual suspects, myself included.


    Tim-
    “When buying and selling are controlled by legislation, the first things to be bought and sold are legislators.” - P. J. O’Rourke
    “Socialism is great until you run out of someone elses money” Margaret Thatcher

  2. #52
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    Re: Prop 8 judge admits he is gay

    Quote Originally Posted by Hicup View Post
    Thank you for your honesty, Redress. In Walkers opinion he even stated this much. I liked his conclusion frankly. It was a well reasoned legal opinion, and he tried as best he could to seal up some holes, but it does sound in reading it that he knew full well this would go to the Supreme court. I read every single finding of fact today, and commented on each one but left the conclusion alone. It's too long to post 5 pages of comments by me, and I'm not sure it is even worthwhile as this thread seems to have lost the interest of DP members, less the usual suspects, myself included.


    Tim-
    Aww I want to see it
    He touched her over her bra and underpants, she says, and guided her hand to touch him over his underwear
    Quote Originally Posted by Lutherf View Post
    We’ll say what? Something like “nothing happened” ... Yeah, we might say something like that.

  3. #53
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    Re: Prop 8 judge admits he is gay

    to ressurrect a thread; Ed Whelan brings up a good point about how the Judge should have recused himself by the logic of his own ruling.

    ...The complaint in Perry, filed in May 2009, sought a permanent injunction against “all enforcement of Prop. 8.” Among other things, the plaintiffs alleged that the “inability to marry denies gay and lesbian individuals and their children the personal and public affirmation that accompanies marriage.” They further alleged that they, as “gay and lesbian residents of California who are involved in long-term serious relationships with individuals of the same sex and desire to marry those individuals,” had suffered “significant hardship” from Proposition 8, “including but not limited to the deprivation of rights guaranteed by the Fourteenth Amendment and severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma.”

    In August 2010, Judge Walker ruled that Proposition 8 “is unconstitutional under both the Due Process and Equal Protection Clauses,” and he ordered “entry of judgment permanently enjoining its enforcement [and] prohibiting the official defendants” — including California’s governor, attorney general, and the state officials “responsible for prescribing and furnishing the forms for marriage license applications, the certificate of registry of marriage, including the license to marry, and the marriage certificate” — “from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.”

    Among the findings of fact that Walker offered in support of his ruling were that “Proposition 8 increases costs and decreases wealth for same-sex couples,” that marriage “benefits both spouses by promoting physical and psychological health,” that “marriage is widely regarded as the definitive expression of love and commitment in the United States,” and that “Proposition 8 places the force of law behind stigmas against gays and lesbians.”

    Now let’s consider how those facts apply under federal recusal law:

    Section 455(a) of Title 28 of the United States Code requires that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” As explained by a publication of the Federal Judicial Center, Judicial Disqualification: An Analysis of Federal Law (2d ed. 2010), section 455(a) makes “clear that judges should apply an objective standard in determining whether to disqualify”:

    A judge contemplating disqualification under § 455(a), then, should not ask whether he or she believes he or she is capable of impartially presiding over the case. Rather, the question is whether a judge’s impartiality might be questioned from the perspective of a reasonable person, and every circuit has adopted some version of the ‘reasonable person’ standard to answer this question.
    ..

    Whether Walker had any subjective interest in marrying his same-sex partner — a matter on which Walker hasn’t spoken — is immaterial under section 455(a). (If Walker did have such an interest, his recusal also would be required by other rules requiring that a judge disqualify himself when he knows that he has an “interest that could be substantially affected by the outcome of the proceeding.”) Walker’s own factual findings explain why a reasonable person would expect him to want to have the opportunity to marry his partner: A reasonable person would think that Walker would want to have the opportunity to take part with his partner in what “is widely regarded as the definitive expression of love and commitment in the United States.” A reasonable person would think that Walker would want to decrease the costs of his same-sex relationship, increase his wealth, and enjoy the physical and psychological benefits that marriage is thought to confer.

    Because Walker was deciding how the law in the very jurisdiction in which he lived would directly govern his own individual rights on a matter that a reasonable person would think was very important to Walker personally, it is clear that Walker’s impartiality in Perry “might reasonably be questioned.”..

    A judge also has an obligation to disclose to the parties information that they might consider relevant to the question of disqualification. That disclosure enables a party to identify other information that might bear on the question and to decide whether to move to disqualify the judge. It also enables a party to make an informed judgment whether to waive a judge’s obligation to disqualify himself under section 455(a). Indeed, the waiver provision explicitly states that “waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.”

    Anyone whose assessment of the recusal question might be altered by additional facts should have in mind that it was Walker who, by not disclosing to the parties at the outset of Perry that he was in a long-term same-sex relationship, effectively foreclosed any inquiry into additional facts. Indeed, it is reasonable to suspect that Walker failed to disclose that information precisely because he was concerned that it would require his recusal or invite unwelcome follow-up inquiries. Walker’s failure to live up to his disclosure obligation thus provides yet another reason why a reasonable person, with the benefit of Walker’s belated disclosure, would have ample cause to question his impartiality.

    Now that Walker has finally disclosed facts that would have warranted his disqualification from Perry, the appropriate remedy is for the Ninth Circuit — or, if necessary, the Supreme Court — to vacate Walker’s judgment upon a request by Prop 8 proponents. As the Supreme Court ruled more than two decades ago in Liljeberg v. Health Services Acquisition Corp. (1988), where a district judge has violated section 455(a) by deciding a case that he should have disqualified himself from, it is “appropriate to vacate the judgment unless it can be said that [the losing party] did not make a timely request for relief, or that it would otherwise be unfair to deprive the prevailing party of its judgment.” In that case, the losing party did not learn of the facts requiring disqualification until ten months after the court of appeals had affirmed the district court’s judgment, so the question was whether the judgment that had become final on appeal should nonetheless be set aside. The Court found the request for relief to be timely, as the delay was attributable to the judge’s failure to disclose the facts requiring disqualification. A request now by Prop 8 proponents to vacate Walker’s judgment would indisputably be timely (and would clearly not involve any unfairness to the Perry plaintiffs), as the appeal on the merits is still pending, and Walker has only now revealed the information requiring his disqualification...

  4. #54
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    Re: Prop 8 judge admits he is gay

    This whole argument is ridiculous. They aren't asking for extra or special rights. Homosexuals are asking for rights that they should already have. Rights that are, unconstitutionally, being withheld from them because of some people disapprove of who they are attracted to. Rights, that when finally granted, won't just benefit them. They would benefit everyone, because everyone would have the right to marry someone of the same sex and everyone would see the economic benefits of same sex couples being able to legally marry.
    "A woman is like a teabag, you never know how strong she is until she gets in hot water." - Eleanor Roosevelt

    Keep your religion out of other people's marriages.

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    Re: Prop 8 judge admits he is gay

    cpwill.. I agree with this article. Legally, the failure to disclose is a fatal-error on the judge, and the matter will be reheard. His decision will be vacated!

    Tim-
    “When buying and selling are controlled by legislation, the first things to be bought and sold are legislators.” - P. J. O’Rourke
    “Socialism is great until you run out of someone elses money” Margaret Thatcher

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    Re: Prop 8 judge admits he is gay

    Judge Walker being gay was a pretty well known thing at the start of the trial. Shouldn't the plaintiffs have brought it up then if they were concerned about it affecting his impartiality while the trial was going on? Are the plaintiffs even challenging his ruling because of his sexual orientation? Wouldn't they then have to explain why they didn't question that particular aspect before? It wasn't exactly a secret that he was gay, even before the trial began but especially during the trial.

    Judge being gay a nonissue during Prop. 8 trial - SFGate
    Prop 8 Trial Judge: Yep, He's Gay | NBC San Diego

    The defendants in the case, who are seeking to preserve the ban on gay marriage passed by voters in 2008, would have to make the argument while the case is still being tried that Walker could not judge the case without bias.

    Source: Prop 8 Trial Judge: Yep, He's Gay | NBC San Diego
    "A woman is like a teabag, you never know how strong she is until she gets in hot water." - Eleanor Roosevelt

    Keep your religion out of other people's marriages.

  7. #57
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    Re: Prop 8 judge admits he is gay

    Quote Originally Posted by cpwill View Post
    yeah, i would say that A) everyone knew this already B) it helps eplain some of his behavior and C) he probably should have recused himself, but there is certainly no reason that he should have been forced to do so.
    wow...does that mean a heterosexual judge should recuse himself, as well? i honestly don't believe you posted that.

    Originally Posted by johnny_rebson:

    These are the same liberals who forgot how Iraq attacked us on 9/11.


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