Gay Judge’s Prop. 8 Decision Holds

A U.S. District Court judge has denied a motion by Proposition 8 supporters in California to vacate the ruling against the ballot measure because the judge in the case is gay.

Last August, Judge Vaughn Walker struck down Prop 8, which repealed the legalization of same-sex marriage in California by defining marriage as between one man and one woman. In his opinion, he wrote: “Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.”

Prop 8 backers asked Chief U.S. District Judge James Ware to vacate Walker’s ruling—arguing that Walker should have recused himself since he is a gay man and could benefit from ruling that same-sex marriage is legal.

Ware forcefully rejected that argument in his opinion—pointing out its absurdity:

[T]he presumption that ‘all people in same-sex relationships think alike’ is an unreasonable presumption, and one which has no place in legal reasoning. The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief.

The move by ProtectMarriage.com was an obvious Hail Mary attempt to get the ruling nullified. Their reaction has been pretty typical—now training their sights on Judge Ware—pointing to a story that the judge “misrepresenting himself as the brother of a boy killed by racists in Alabama in 1963.”

Ed Whelan at the National Review quotes an email from an attorney friend who goes on to characterize Ware as a lazy liberal:

Since then, he “enjoys” a well-earned reputation for laziness. He has transformed the back wall of his courtroom, not his chambers mind you, into a shrine to the civil rights movement with posters of Malcolm X, candidate Barack Obama and other memorabilia prominently displayed…. In my opinion, while he’s not distinguished himself as a jurist of prominence, he, too, would use the occasion, were it to present itself to him, to burnish his credentials with the left and atone for his past indiscretion(s).

It’s no shock for the religious right to attack judges who don’t agree with their arguments, but blogger Michael Airhart believes there was a larger goal here for Prop 8 proponents—precedent.

Narrowly speaking, antigay groups had sought to prevent any gay person other than a celibate or “ex-gay” from serving as a judge in family-law matters. More broadly, the Christian Right groups sought to rationalize a future ban on female, black, atheist, and Jewish judges serving in cases involving minority constitutional rights.

If he’s right, then it’s even more of a slap for a judge they perceive as a lazy liberal to set them back on their heels.

Indeed, Ware rebuked Prop 8 proponents by reiterating the entire point of having an impartial judiciary system—whether we agree with their rulings or not:

“In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right,” Ware wrote.

The case is far from over and has been appealed to the Ninth Circuit United States Court of Appeals.

Candace Chellew-Hodge is the founder/editor of Whosoever: An Online Magazine for GLBT Christians and currently serves as the pastor of Jubilee! Circle in Columbia, S.C. She is also the author of Bulletproof Faith: A Spiritual Survival Guide for Gay and Lesbian Christians (Jossey-Bass, 2008)