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Gay Judge Raised as Issue in Prop 8 Appeal over Same-Sex Marriage Ruling - A Bad Argument Raised Too Late to Matter

By September 23, 2010

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It was fairly well known during the trial over Prop 8, California's ban on same-sex marriage, that the judge hearing the case was gay. U.S. District Judge Vaughn Walker is described as someone who neither advertises nor hides his homosexuality, and he was randomly assigned the Prop 8 trial.

During the course of the trial, my understanding is that no one asked the judge to recuse himself from the case and no one argued in court that the judge should be disqualified from ruling on the merits of the case. Nonetheless, in the first amicus curiae brief to the 9th Circuit Court of Appeals, someone calling himself Robert Wooten has argued that the judge should have recused himself because he "has a personal interest in the trial." I describe the brief writer as someone calling himself Robert Wooten because his brief provides no address, phone number, or group affiliation in his two-page brief.

There has been some debate in the media over whether this will be a legitimate issue on appeal, or if this is the equivalent of arguing that an African-American judge should not hear cases involving civil rights issues or that a female judge should not rule on issues involving gender discrimination. While the merits of such arguments can be debated by those who don't realize how ridiculous it is to assert such a position, one thing that the media discussion overlooks is that this issue is no longer timely because it was never presented to the trial court. Presumably, none of the lawyers involved in the case raised the issue because they realized it had no legal merit.

One of the basic principles of appellate law practice is that if an issue was not raised to the trial court, then it cannot be presented for the first time on appeal. While there are certain situations where exceptions to this rule will apply, there is nothing to indicate that those exceptions would be relevant to this case. If the people who wanted the Prop 8 ban on gay marriage to go into effect considered the judge's sexuality to be a legitimate issue affecting his ability to be unbiased, then they had a responsibility to file a motion asking the judge to recuse himself from the case. It is my understanding that they did not ask the judge to recuse himself and that they never asked him to be disqualified from the case, even with the case going up on interlocutory appeals on other issues as the case progressed. Thus, as a procedural matter, Judge Walker's homosexuality is a moot point that should have no bearing on the ruling of the appellate court.

What are your thoughts on this issue? Do you think it was appropriate for the American Bar Association (ABA) to pass a resolution supporting civil marriage for gay and lesbian couples? Should Judge Walker have voluntarily recused himself from this case, or should the opponents of gay marriage have asked him to recuse himself if they didn't think he could rule on the case fairly? Does this debate reflect a bias against homosexuals, considering that no one has raised the question of the sexuality of heterosexual judges who have ruled on related issues? Or is this whole discussion just a public relations attempt to undermine the public perception of the judge's ruling? Share your thoughts in the comments section below, or discuss the issue in our Forum.

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