At the end of Monday’s 3-hour long oral arguments, District Court Judge James Ware said he hoped to have a written ruling on the motion to have Judge Vaughn Walker’s Prop 8 ruling vacated “within 24 hours”.

The bottom line issue: Did Judge Walker have a duty to recuse himself from the Prop. 8 trial or at the very least disclose he was in a same sex relationship. Prop. 8 lawyers say that left him “in the same shoes” as the two same sex couples before him, with a direct personal interest in the outcome of the case.

Both sides more or less stuck to their pre-trial briefing. Judge Ware homed in on whether the standard for recusal is subjective or objective — and how a personal interest differed from a financial interest.

There was some fun back and forth with Judge Ware and Prop. 8 attorney Charles Cooper about relationships. Cooper asserted that people in a 10-year relationship like Walker’s would “ordinarily have an interest in marriage.” Ware: “Isn’t that an assumption — not all long term relationships lead to marriage.” Cooper said only long term platonic relationships are not assumed to head toward marriage.

Ware asked repeatedly: “Do you have evidence Judge Ware was interested in marriage? Or are you saying the fact that he didn’t disclose it is evidence that he wanted to get married.” Then, “how does failure to disclose his relationship indicate he wanted to get married?”

Ware noted that Cooper never answered the question, which could well come back to haunt him.

Ware, who is African American, asked if a reasonable person thought a Black judge couldn’t be impartial on a civil rights case was that sufficient for a judge to recuse? Cooper said it was not.

Then Ware asked: Is there anything about being in a same sex relationship that would cause a reasonable person to conclude that a judge could not be unbiased.

Ware also asked if a female judge who had been raped should have to disclose that in a trial about sexual assault.

The line of questioning strongly suggests Judge Ware will reject the Motion to vacate Judge Walker’s decision.

Prop 8 Judge Could Rule Tuesday on Vaughn Walker Bias Issue 13 June,2011Scott Shafer

  • Just because a person happens to be gay- doesn’t mean they aren’t capable of understanding this issue- which is- “is this unconstitutional?” Saying a gay person isn’t qualified to decide such things is like saying a woman can’t decide on whether abortion should be legal or not. Just because a woman CAN have an abortion doesn’t mean that they will or that they will benefit from it.
    This entire thing is ridiculous. How can a society say “with liberty and justice for all” and that “all men are created equal” and then continuously hold down one segment of society and say- well- these truths don’t pertain to you. It’s 2011 people. Focus on your own family and on your own lives- maybe THAT will make the world a better place.
    I’m gay- I don’t know if I will ever get married but I should at least have that right.


Scott Shafer

Scott Shafer migrated to KQED in 1998 after extended stints in politics and government to host The California¬† Report. Now he covers those things and more as senior editor for KQED’s Politics and Government Desk. When he’s not asking questions you’ll often find him in a pool playing water polo. Find him on Twitter @scottshafer

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