Tuesday, June 14, 2011
United States District Judge James Ware, who assumed the case of Perry v. Schwarzenegger (now Perry v. Brown) after the retirement of Judge Vaughn Walker, has issued his opinion on the motion to vacate Walker's judgment that California's Proposition 8 is unconstitutional. Walker issued his opinion after an extensive trial in January 2010.
As expected given the clear state of the law, Judge Ware denied the motion. As Judge Ware's opinion stated, "The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself," citing, Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 660 (10th Cir. 2002); MacDraw, Inc. v. CIT Group Equip. Financing, Inc., 138 F.3d 33, 37 (2d Cir. 1998); Blank v. Sullivan & Cromwell, 418 F. Supp. 1, 4 (S.D.N.Y. 1975); Feminist Women’s Health Center v. Codispoti, 69 F.3d 399, 400 (9th Cir. 1995); United States v. Alabama, 828 F.2d 1532,1541-42 (11th Cir. 1987); In re City of Houston, 745 F.2d 925, 931 (5th Cir. 1984).
The question of personal bias based on identity rising to the level mandating recusal is a fraught one. Indeed, it is usually persons who have not traditionally been members of the judiciary who are most likely to be perceived as biased. Professor Reg Graycar's work, which we discussed here, provides extensive examples. Judge Ware expressly acknowledges this situation: "it would not be reasonable to regard a fact as bringing a judge’s impartiality into question if doing so would institute a “double standard for minority judges” whereby the fact that a judge is gay, or black, or female would “raise doubts about [that judge’s] impartiality.” (quoting United States v. Alabama, 828 F.2d at 1542).
Judge Ware ultimately concludes:
the 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. On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits. The Motion fails to cite any evidence that Judge Walker would be incapable of being impartial, but to presume that Judge Walker was incapable of being impartial, without concrete evidence to support that presumption, is inconsistent with what is required under a reasonableness standard.
Judge Ware does not broach the subject of whether any judge would be impartial in the Proposition 8 case, given the arguments that the Defendant-Intervernors have advanced. Specifically, in light of the Defendant-Intervernors' arguments that same-sex marriage is injurious to opposite-sex marriage, presumably anyone who had entered into an opposite-sex marriage - - - or who might be eligible to enter into an opposite-sex marriage - - - would be biased.
[image: A Judge, Wenzel Hollar, circa 1650)