Bench Memos

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Re: Stephen Gillers’s Faulty Escape Hatch


A follow-up to my recent post arguing that the principles that law professor Stephen Gillers has soundly embraced in connection with the debate over Vaughn Walker’s non-recusal from the Prop 8 case compel him to conclude that Walker should have recused himself:

I’m pleased to note that Gillers, to his credit, appears genuinely serious about thinking through my argument (and, in the process, even offers some very favorable remarks about my analysis of issues of legal ethics). Specifically, Gillers yesterday invited his fellow academic bloggers on Legal Ethics Forum and the blog’s other readers to respond to the core point in my post—namely, that Gillers is wrong to maintain that Walker’s anti-Prop 8 ruling “has no consequence to him” since Walker “could marry [his same-sex partner] today in a number of states.”

From the dozen or so comments that Gillers has received so far, I think it’s fair to say that no one has offered any rebuttal to my observation that “the continued existence of Prop 8 should mean that California would not recognize a same-sex marriage performed today in another state.” Instead, a number of comments have gone way off track. (One, for example, alleges that Prop 8 proponents’ recusal argument is based on a “class of citizens” theory—an allegation that Gillers has clearly recognized to be false.) That’s led Gillers to try to get the discussion back on track by posting his own comment asking whether California courts have addressed the question whether California must refuse to recognize out-of-state same-sex marriages.

I’m happy to address Gillers’s question: Prop 8 itself provides, “Only marriage between a man and a woman is valid or recognized in California.” That rule, which is not limited to prohibiting the performance of same-sex marriages in California, makes crystal-clear that California must refuse to recognize out-of-state same-sex marriages.* Further, for purposes of establishing that Walker’s anti-Prop 8 ruling did have “consequence to him” notwithstanding his ability to “marry [his same-sex partner] today in a number of states,” it suffices that there certainly is no basis for believing the opposite rule to have been clearly established—i.e., that California will recognize out-of-state same-sex marriages. In other words, in striking down Prop 8, Walker was conferring on himself a valuable right—a right to enter into a same-sex marriage that California would clearly recognize (and a right that a reasonable person would believe that Walker had a strong and particular interest in exercising).

So, Professor Gillers, with this last obstacle cleared out of the way, I invite you to take that last short step and affirm that Walker was required to recuse himself.

* One possible narrow exception to this rule—an exception that is irrelevant to Walker’s ability to “marry [his same-sex partner] today in a number of states”—would concern only same-sex marriages performed prior to the adoption of Prop 8. In Strauss v. Horton, the California supreme court, in upholding Prop 8 against state-law challenges, ruled that Prop 8 does not apply to the same-sex marriages performed in California before Prop 8 was adopted. In a footnote (slip op. at 135 n. 48), the court declined to address whether Prop 8 would apply to “same-sex couples who were lawfully married in another jurisdiction prior to the adoption of Proposition 8, but whose marriages were not formally recognized in California prior to that date.”(Emphasis added.)


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