What Happened With Judge Walker: Gay Judges Officially Ruled Okay As Judges

As we were already pretty certain of yesterday, Judge Ware has ruled that Judge Walker’s decision on Prop 8 is valid despite the fact that Judge Walker, like all other humans, has a sexual orientation. The full court decision can be read here; while it can’t compare to the pure poetry of Judge Walker’s original 138-page decision, but there are a few gems. Most notably, this paragraph here:

After considering the Oppositions to the Motion and the governing law, as discussed below, the Court finds that neither recusal nor disqualification was required based on the asserted grounds. The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification under Section 455(b)(4). Further, under Section 455(a), it is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings. Accordingly, the Motion to Vacate Judgment on the sole ground of Judge Walker’s same-sex relationship is DENIED.


In a lot of ways, it seems like a reboot of the original Prop 8 trial: the exact same deeply incompetent lawyer, Charles Cooper, and a patient but wearying judge who has to sit through the same arguments repeated over and over no matter how many times they’re shown to be groundless. A great deal of the back-and-forth can be read at Prop 8 Trial Tracker, although unfortunately it isn’t quite the laugh-a-minute thrillfest that the original trial was – reading this feels more like watching a remote-control car run into the wall again and again until its battery runs out. An example:

Judge Ware: What is the fact you rely upon that Judge Walker was in a relationship for purposes of marriage?

Charles Cooper:  The fact that he has publicly announced that he is and has been in a relationship with another person?

W: So if you are in a ten year relationship with another person, that is for purposes of marriage?

….

W: You would concede that you could be in a long term relationship without being in it for purposes of marriage?

C: Yes.

W:  What distinguishes it?

C:  The very fact that two individuals are in kind of relationship Walker has…

W: What distinguishes between two?

C: There are platonic friendships that do not lead to marriage. [laughter]

W:  What do you mean platonic?

C: Non-intimate, non-sexual. Clear understanding of media reports…

W:  You are saying that length of relationship alone converts to marriage relationship?

There’s plenty more where that came from!

An unavoidable fact of this hearing on, more or less, whether or not minority groups are able to respond reasonably to issues that affect minority

JUDGE JAMES WARE

groups, was that the judge presiding over it does in fact belong to a racial minority. Although this case doesn’t boil down to a comparison of the experiences of racial and sexual orientation minorities, it does throw the real facts of this case into relief. Judge Ware has worked hard to get to his position, the exact same position that Judge Walker previously held; he’s earned the power to make this decision with an impressive previous career. Although we can’t know for sure, it’s extremely likely that he’s worked even harder than a white person in his position would have, because as a black man he almost certainly had to face obstacles and prejudices that a white person wouldn’t. To try to tell him in a court of law that he might be somehow unqualified to judge on issues of, say, racial discrimination or civil rights, because his experiences have somehow made him less and not more able to understand and therefore make judgments about those issues, seems pretty pointless. And it was.

A slightly more interesting aspect of the story is that of the tapes made of the original Prop 8 trial. As you may recall, the trial was originally meant to be broadcast on national television, an amazing opportunity that would have allowed people all over the country to learn the real facts of Prop 8 and the hugely inappropriate assertions of the Protect Marriage campaign. The broadcast was ultimately prohibited, but tapes from the original trial still exist. Tapes that include the almost innumerable blunders of Yes on 8 witnesses, along with a lot of very powerful testimony from our side and a lot of deeply unimpressive testimony from Protect Marriage. The tapes are now under seal and protective order, and can’t be released to the public, but can still be reviewed by people involved with the case. Charles Cooper apparently wanted these tapes to be off limits for even those purposes – so they can’t be reviewed by lawyers involved? So they can’t be reviewed by Walker himself? So they can only be reviewed by Walker? To be perfectly honest, after all the coverage of the hearing, I still have no idea what Cooper was going for here, and am comforted only in that Ware doesn’t seem to either.

Ware: My understanding is they were placed under protective order. Your understanding is that must be used only in court.

Cooper: Yes. Court’s amendment to assurances were consistent with court rules on videos. Plaintiffs under protective order.  We did not prevent.

Ware:  Any authority that judge is subject to protective order?

Cooper: No. We haven’t voiced that consideration.

Ware: Sounds like an argument as to whether Walker made a mistake by displaying videos publicly. No such motion. If there were, I would want Walker present. Why are you doing this?

Cooper:  Not sure what you mean by “mistake.” We say Walker’s use was a mistake and contrary to rules.

Ware: What relief you seek from me?

Cooper:  Seeking that court as custodian of record of case esp. that which is sealed ordered that all persons return them to the court including Walker.

Ware:  You want me to order all parties to return to court and not to allow further use even on appeal?

Cooper:  Our view is different for plaintiffs.

Ware:  That’s a no.  I don’t understand the protective order to preclude use by parties.

Now that we can agree that no one, possibly not even Cooper, understands what was being asked for with regard to these tapes, we can move on to the fact that this motion was denied. Does this mean that the tapes of David Blankenhorn yelling belligerently on the stand when it was revealed he had no peer-reviewed research background, or Kenneth Miller’s floundering when asked basic questions about his “field of expertise,” or William Tam’s claiming that gay people are “12 times more likely to molest children,” will be available in living color for further ‘review’ when this case eventually goes to the Supreme Court? This is unclear. It probably won’t, because that would make me happy.

But in any case: We Won A Thing. Specifically, we won a thing that helps ensure no one is going to go back in time and try to have us un-win the important thing we already won. And it’s comforting to know that Judge Ware is keeping the tradition of dry, self-aware judicial humor alive and well in the U.S. District Court for the Northern District of California.

Judge Ware was the person who first gave Judge Walker a copy of the trial recordings at a retirement/ passing of the gavel ceremony.  Ware asks Cooper if he should recuse himself? There’s an audible laugh from the gallery. “I don’t need an answer now,”

 

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Rachel is Autostraddle's Senior Editor and the editor who presides over books and news & politics coverage. Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy."

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35 Comments

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    Jesus, this is so ridiculous. Conservatives complain about their tax money and our government being used improperly all the goddamn time and look what we’re having government officials wasting their time doing! At least it’s becoming clear that the courts are about as fed up with the Protect Marriage crew as the gaymos are.

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    “Conservatives complain about their tax money and our government being used improperly all the goddamn time and look what we’re having government officials wasting their time doing!”

    I guess libs only like wasting tax money when it is defending laws they like.

    Can any defender of same sex marriage tell me the following:

    1. How does a same sex couple consummate a marriage?

    2. If you are going to change the definition of marriage(without decree of law by the way), why shouldn’t marriage between multiple people be allowed?

    3. How does a child in a household with 2 males address them? Fred, Barney? Wilma, Betty?

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    @Joe Blake

    1. Answer: to consummate a marriage…have sex.
    Note: the way you phrased your question implies that you don’t believe sex between the same gender counts. please be less obvious.

    2. Answer: simply don’t support polygamy
    Note: just because a group believes that gays should marry doesn’t meant they also automatically support polygamy. don’t lump everyone together. i actually have very good reasons against polygamy but it
    would take to long to write it all down.

    3. Daddy, dad, dads, papa, pa, pops….take your pick at any pair of names. for example call one male parent daddy and the other male parent papa.

    Having stable loving families is an universal and traditional ideal, not limited to either the conservatives or liberals. We want to be able to legally and financially protect our families and the ones we love. This is why it seems like conservatives are wasting money…because they are impeding on these people who want to build stable loving families of their own. It is then not a waste of money for gay rights proponents to do (fighting for marriage equality) what the so called “traditional values” groups just will not.

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    OK, so I’m sure other people could write far more intelligent and eloquent responses to this, but here’s my two reply:
    1. By having sex? Gay sex. Heard of it? It’s fairly easy to google. It can’t lead to children, just like sex between infertile heterosexual people can’t lead to children, just like sex between a woman on the pill and a man can’t lead to children, I could go on…
    2. The definition of marriage is constantly changing, wife is property, wife is equal partner, partners must be the same race, partners can be of different races. Will the definition continue to change, who knows? Maybe, but this isn’t the beginning of a change in definition. Straight people started to redefine marriage, not gay people.

    3. How about dad and daddy? Using their first names? It’s not an insurmountable problem.

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    I was going to say something about how I am now inspired to call my folks cartoon character names… until I realized that we (my family) prefer to address each other by ridiculous nicknames already. Snarkfail.

    Anyways, here’s to hoping that this is a wake-up call over the constitutionality of this issue. :)

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    I thought that this issue was a no brainer. The media seems to be hyping it up.

    If Judge Walker was forced to recuse himself – that would be like a black Judge having to recuse himself every time race was a material issue in a case before his court.

    Makes no sense..

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      No. It has to be dragged on and on until:
      1] people lose interest and it gets passed quietly
      2] The Supreme Court smacks down all Equality Opposition and tells them to shut the hell up
      or
      3] God comes down and personally tells the Mormons that they are crazy.

      [which they would believe, because apparently they believe that God, Jesus, and the Holy Ghost are all REAL. As in they are 'of flesh and bone'. 'Course even if God came down IRL they'd probably call him Satan and kill him...good job, guys!]

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          Honestly, I can’t believe that ANY Christians would want to associate with them. I mean, they don’t go by the Bible, they go by The Book of Mormon: ANOTHER testament of Jesus Christ. Riiight. Why didn’t they just call it ‘P.S.’?

          Another crazy thing [which explains why they are so rich] is that tithing is required in order to get to the highest reaches of heaven. What bollocks.

          That’s right up there with that Scientology bullcrap, and DON’T EVEN GET ME STARTED ON THOSE ASSHOLES!

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    “Gay Judges Officially Ruled Okay As Judges”

    Oooo – truly ‘scary’ stuff, that! What’ll be next? Gay Janitors Officially Ruled Okay As Janitors? Gay Doctors Officially Ruled Okay As Doctors? Gay Veterans Officially Ruled Okay As Veterans?

    What a crazyass country America has become. Either everyone is equal or no one is.

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    @ Joe Blake,

    “Can any defender of same sex marriage tell me the following:

    1. How does a same sex couple consummate a marriage?”

    Easy. The same way you betterosexuals do. Thanx 4 askin’ (not that it’s any of you bidness).

    “2. If you are going to change the definition of marriage(without decree of law by the way), why shouldn’t marriage between multiple people be allowed?”

    Because currently in America, NO citizen has the ‘right’ to multiple spouses. (I thought even YOU would have known that.) The struggle for equality means that ALL citiozens get to marry the adult of their own mutual choosing. It’s called a COMMITMENT, as in, “I choose YOU, not a bunch of people.”

    “3. How does a child in a household with 2 males address them? Fred, Barney? Wilma, Betty?”

    Most children call their fathers Dad, or Pop, or Papa. Some parents let their children call them by their first name (tho I would not), and neither Wima nor Betty are names of males, as your premise suggested.

    Try again, but DO BETTER!

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