June 13, 2011 a hearing will be held in a San Francisco courtroom concerning a retired judge along with his sexual orientation. It is an unparalleled suit. Backers say it is a simple case of conflict of interest. Those opposing it dread the precedent would be a dangerous one. Resource for this article - Legal hearing to determine if gay judge had conflict of interest by Newsytype.com.
Prop 8 ruling
According to federal judge Vaughn Walker last August, California's proposition 8 is unconstitutional, or the same-sex marriage ban is constitutional. Walker's sexuality was speculated about. This was during the whole trial period. Walker's statement last Feb. about his long-term relationship with a male has ended that speculation. Chief United States District Judge James Ware has scheduled a hearing to decide if the overturning of Proposition 8 should itself be overturned, based on the supposition that Walker may have had a personal stake in the judgment.
About the conflict
The Proposition 8 lawsuit is something Walker should have recused himself from, lawyers believe. The conflict of interest should have been made known.
"The motion is all about the fundamental principle that a judge really can't sit to hear their own case when they have an interest in the outcome," said attorney Andrew Pugno. "Walker's 10-year same-sex relationship creates this unavoidable impression that he was just not the impartial judge that the law requires."
Pugno maintains that it isn't Walker's sexuality on trial, but the fact that he was in a long-term, same-sex relationship.
Decision is 'frivolous'
The judgment being overturned is "frivolous" and "demeaning." This is what one of Walker's defending lawyers, Ted Olson, said. Olson spoke mostly about the Mormon church campaigning for Proposition 8: "What would a judge do who was Mormon, knowing the Mormon Church took such an active role?" Walker continued, "What would a judge who had a nephew or niece or son or daughter who was gay or lesbian do? We have an unlimited number of permutations of what a judge might be asked to disclose."
Other precedents exist
Sexual orientation hasn't been a factor in the past. Still, there are cases similar to this. Earlier efforts to disqualify female judges in gender discrimination cases have failed, as well as bids to disqualify Hispanic judges in cases dealing with immigration.
Saying there is 'Not one scintilla of evidence'
"There is absolutely not one scintilla of evidence that the fact of who he is biased him against the proponents," claims homosexual rights activist Kate Kendell. "We cannot be about assuming that simply because a judge is of a certain sexual orientation, race or gender, he or she is incapable of actually doing the job of a judge."
An 'insulting accusation'
Rory Little is a Law School Professor at the University of California Hastings. He said, "The immediate reaction is, 'Oh, he's gay, of course he ruled for the gay people.' That's kind of like saying, 'Well, he's black and of course he ruled for the black people.' It really is a sort of insulting accusation... It begins to look like an act of desperation. Rather than fighting the case on the merits, they're looking for procedural reasons to challenge it."