Motion to vacate denied in Prop 8 case

On June 14, 2011, Chief Judge Ware denied the motion to vacate Judge Walker's decision, which had been made on the asserted ground that Judge Walker was disqualified from hearing the case. The opinion is on the court's website - https://ecf.cand.uscourts.gov/cand/09cv2292/  The Prop 8 proponents may seek to renew their arguments in the 9th Circuit Court of Appeals.

In a nutshell, Judge Ware stated that a federal judge is not disqualified and does not need to recuse him or herself just because, as a general member of the public or a member of a broad class of members of the public, he or she might be affected by the ruling or have some broadly shared, speculative interest in the outcome. Judge Ware pointed out that all members of the public, including Judge Walker, share an interest in upholding the principle of equal protection of the law. Yet it would be absurd to disqualify a judge just because of that. Judge Ware saw the situation in the Prop 8 case as little different.

The Prop 8 proponents had tried to present their argument so that it was not based on the fact (apparently common knowledge for a long time in the local legal community) that Judge Walker was gay. Rather, they said, Judge Walker was unfit to preside over the case because he was in a long-term relationship with another man, as he stated after he had issued his decision in the case and retired from the bench. (This fact also apparently had been common knowledge before Judge Walker spoke about it publicly.) But there was no evidence whatsoever that Judge Walker at any time wanted or planned to marry his companion; rather, the Prop 8 proponents speculated that Judge Walker and his companion might some day decide they did want to marry after all. It would be just as easy to speculate that any gay or lesbian judge might some time in the future want to marry someone of the same gender, even if the judge was not in a long-term relationship at the time. So, if Judge Walker was disqualified, wouldn't any other gay or lesbian judge also be disqualified? That would a very treacherous holding. On the same reasoning, wouldn't an African-American judge be disqualified from a racial discrimination case that in some broad sense could strengthen equal rights for African-Americans as a class? Properly, Judge Ware declined to go down that road.