Last year, Judge Vaughn Walker, now retired, ruled that Proposition 8, California’s same-sex marriage ban, was unconstitutional.

One of the legal rationales Prop 8 supporters have used in trying to get Walker’s ruling overturned is that the judge’s long-term same-sex marriage, which he divulged to reporters a couple of months ago, should have disqualified him from presiding over the case because of a potential personal interest in its outcome.

District Court of Northern California Judge James Ware, Walker’s replacement, wasted no time in ruling against that argument. The motion, argued just yesterday, has been denied.

Read a .pdf of the ruling here.

Here is just some of the reasoning that Judge James Ware used in refusing to throw out Judge Walker’s ruling.

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.


These cases lead the Court to adopt the following legal conclusion: In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristic and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge under Section 455(b)(4).


The fact that this is a case challenging a law on equal protection and due process grounds being prosecuted by members of a minority group does not mean that members of the minority group have a greater interest in equal protection and due process than the rest of society. In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right.


Defendant-Intervenors contend that consideration of the fact that Judge Walker “has
been involved in a 10-year (8-year at the time that Plaintiffs commenced this suit) committed same-sex relationship” would lead a reasonable person to question Judge Walker’s impartiality. The Court finds that disqualification under Section 455(a) on the basis of this fact fails, because it depends upon the assumption that a judge who is in a relationship has an interest in getting married which is so powerful that it would render that judge incapable of performing his duties.

Under Ninth Circuit law, however, this assumption is unreasonable. A well-informed, thoughtful observer would recognize that the mere fact that a judge is in a relationship with another person–whether of the same or the opposite sex–does not ipso facto imply that the judge must be so interested in marrying that person that he would be unable to exhibit the impartiality which, it is presumed, all federal judges maintain…To assume otherwise is to engage in speculation about a judge’s motives and desires on the basis of an unsubstantiated suspicion that the judge is personally biased or prejudiced. Mere speculation of that nature does not trigger the recusal requirements of Section 455(a).

Update 4 p.m. Scott Shafer interviewed UC Davis law professor Vik Amar about the ruling today, and Amar made the following point: Judge Ware’s decision alludes to the lack of certainty that Judge Walker, who is in a long-term, same-sex relationship, had a desire to get married. One of Ware’s reasons for denying the motion to vacate is that because Walker didn’t necessarily have that desire, he didn’t have to recuse himself.

But what if, Amar says, Walker had publicly expressed an interest in getting married? Would there then have been an obligation on his part to recuse himself? The decision doesn’t address that, says Amar.

Listen to the interview here:

Motion to Overturn Vaughn Walker’s Prop 8 Ruling Based on His Same-Sex Relationship Fails; Read Excerpts 14 June,2011Jon Brooks

  • Daniel

    Prop 8 was found unconstitutional, and every American has the duty to protect the constitutional rights of their fellows. Judge Walker was doing what a good American should do.


Jon Brooks

Jon Brooks is the host and editor of KQED’s health and technology blog, Future of You. He is the former editor of KQED’s daily news blog, News Fix. A veteran blogger, he previously worked for Yahoo! in various news writing and editing roles. He was also the editor of, which documented user-generated content about the financial crisis and recession. Jon is also a playwright whose work has been produced in San Francisco, New York, Italy, and around the U.S. He has written about film for his own blog and studied film at Boston University. He has an MFA in Creative Writing from Brooklyn College.

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