Prop 8 Proponents’ Reply Brief in Support of Motion to Vacate

by Ed Whelan

Prop 8 proponents’ reply brief in support of their motion to vacate former district judge Vaughn Walker’s anti-Prop 8 judgment systematically dismantles the feeble arguments that plaintiffs presented in opposition to the motion. (See also my various responses to the many confused critics of the motion.)

1. In reply to plaintiffs’ “startling claim that the longstanding statutory (and constitutional) prohibition against a judge hearing his or her own case does not apply when the judge ‘is a member of a minority group that seeks access to a fundamental constitutional right’”:

The cases cited by Plaintiffs …. stand for the unremarkable proposition that merely belonging to the same minority group as one of the parties does not itself give rise to an interest in the outcome of the case requiring disqualification.… [T]he recusal statutes, of course, [do not] contemplate the double standard urged here by Plaintiffs, one that would permit a minority judge to preside over a case despite having a direct and substantial personal interest in the outcome. To the contrary, the same rules apply to all judges—black and white, male and female, straight and gay. Thus, black judges have routinely sat on school desegregation cases that did not directly and substantially affect them (or their children) personally, female judges have regularly heard gender discrimination cases that did not directly and substantially affect the judge’s personal interests, and we have no doubt that it will become equally commonplace for gay and lesbian judges to decide cases involving claims of sexual orientation discrimination where a reasonable person would not have any cause to believe that the outcome of the case could directly and substantially affect the judge’s own personal interests.


None of the cases cited by Plaintiffs and their allies stands for the proposition that a judge may sit when a reasonable person would have cause to believe that the judge might have a direct and substantial personal interest in the outcome of the case, and the judge failed to disclose his interest in the matter. 

2. In reply to plaintiffs’ claim that Prop 8 proponents seek to disqualify Walker “based on nothing more than his sexual orientation”:

As with minority judges in the mine run of racial or gender discrimination cases, there will rarely be any reason to believe that the outcome of a sexual orientation case might have any effect — much less a direct and substantial effect — on the personal interests of a gay or lesbian judge assigned to the case.  We know of no reason to believe, for example, that Judge Walker would have any personal interest in the outcome of litigation over, say, the constitutionality of the military’s “Don’t Ask, Don’t Tell” policy.   Nor would there be any issue with a gay or lesbian judge hearing this case so long as a reasonable person, knowing all of the relevant facts and circumstances, would not have reason to believe that the judge has a current personal interest in marrying if Plaintiffs prevailed.  The particular facts and circumstances that give rise to such a reasonable concern in this case — Judge Walker’s ten-year same-sex relationship, his refusal to disclose both his relationship and whether he and his partner have any interest in marriage, his findings concerning the manifold benefits of marriage for “committed, long-term same-sex relationships,” and the extraordinary rulings and course of proceedings in this case — plainly do not necessarily exist for all or even most gay and lesbian citizens or judges.


Plaintiffs insist that there is no meaningful distinction for purposes of marriage between a gay person in a “long-term committed relationship” and any other gay person, and that any effort to draw such a distinction would present an “intractable line-drawing problem.” But Plaintiffs have consistently drawn precisely this common-sense line throughout this case, repeatedly emphasizing that the marital right they seek to vindicate is that of “two individuals of the same sex who have spent years together in a loving and committed relationship.”

Plaintiffs allege in their complaint that they “are gay and lesbian residents of California who are involved in long-term, serious relationships with individuals of the same sex . . . .” They argue that Proposition 8 is unconstitutional because it prohibits them “from marrying the person with whom they are in a loving, committed, and long-term relationship . . . .”  Indeed, Plaintiffs insist that they “are similarly situated to heterosexual individuals for purposes of marriage because, like individuals in a relationship with a person of the opposite sex, they are in loving, committed relationships.”

Judge Walker, for his part, has likewise consistently equated marriage with “committed long-term relationships.” Indeed, he has emphasized that “deep emotional bonds and strong commitments” are the key “characteristics relevant to the ability to form successful marital unions.” Judge Walker has even gone so far as to say that the committed long-term relationships of Plaintiffs in this case are marriages. (“[P]laintiffs ask California to recognize their relationships for what they are: marriages.”).

Thus, far from indistinguishable, a gay person who is in a committed long-term relationship, and a gay person who is not in such a relationship are in no way even comparable for purposes of marriage, as both Plaintiffs and Judge Walker have repeatedly recognized throughout this case. [Citations and footnote omitted.]

3. Prop 8 proponents show that plaintiffs’ claim that their motion is not timely is utterly without merit (Reply at 11-14) and that vacatur of Walker’s judgment is the necessary remedy (Reply at 14).

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