Disclosure Delayed Is Justice Denied
The judge who threw out Prop 8 should have been disqualified.


Ed Whelan

Two weeks ago, former federal district judge Vaughn Walker, who ruled last summer in Perry v. Schwarzenegger that California’s Proposition 8 is unconstitutional, publicly disclosed for the first time that he has been in a same-sex relationship for the past ten years. A straightforward application of the judicial ethics rules compels the conclusion that Walker should have recused himself from taking part in the Perry case. Further, under well-established Supreme Court precedent, the remedy of vacating Walker’s judgment is timely and necessary.

Let’s begin with the relevant facts that bear on the recusal question.

According to his recent disclosure, Walker has been in a relationship with the same man for the past ten years. Walker and his partner evidently live in the San Francisco area.

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.

In adopting this objective standard, section 455(a) “obviates making subjective judgment calls about what is actually going on inside a judge’s heart and mind.”