(2 of 2)
Two gay couples who want to get married filed suit against Prop 8 in 2009, only months after California voters passed the constitutional amendment that attempted to forever ban gay marriage. They are represented by the famed legal duo of Theodore Olson and David Boies, two legal heavyweights who have vowed to take the case to the Supreme Court if possible. The 2008 referendum came soon after the California Supreme Court issued a sweeping decision declaring that gays had a constitutional right to marry.
Evidence presented at trial was overwhelmingly in favor of the plaintiffs' case, and Walker, a Republican appointee with a centrist record of iconoclastic decisions including one that early made him a target for criticism by gay activists found that marriage between gays was also protected by the U.S. Constitution and struck down Prop 8.
His ruling is now on appeal before the Ninth Circuit, where the court has put the case on hold until the California Supreme Court resolves a question about whether Cooper's clients have standing to appeal Walker's decision at all.
On Monday, the motion seeking to have the decision vacated was denounced by the American Foundation for Equal Rights, the group that is paying the legal bills for the plaintiffs. "This motion is yet another in a string of desperate and absurd motions by Prop 8 proponents who refuse to accept the fact that the freedom to marry is a constitutional right," the group's board president Chad Griffin said in a statement. "Clearly, the proponents are grasping at straws because they have no legal case."
The proponents provided TIME with a copy of the motion, and in 18 pages of legal argument, Cooper attempts to prove that assertion wrong. He argues that Walker should have, at minimum, disclosed his orientation and disavowed any intention of getting married. He said judges have a duty to consider for themselves, whether anyone raises the question or not, all possible grounds for stepping aside from a case.
Leslie Abramson, a scholar of judicial ethics at the University of Louisville law school, told TIME that Cooper has that part right. "In both federal and state courts, the Code of Judicial Conduct is supposed to be self-executing," Abramson said. "The judge is not supposed to await a motion to disqualify before considering the circumstances of the case or parties."
Cooper's motion notes that in some cases a judge can stay on a case by simply disclosing a potential conflict and then, in effect, granting himself a waiver. In other cases and Cooper said this is one the conflicts are so severe that the judge must step down.
Because Walker did not disavow plans to get married, Cooper said the courts must presume he intends to do so and therefore stood to benefit by his ruling. "Indeed, such a personal interest in his own marriage would place Chief Judge Walker in precisely the same shoes as the two couples who brought the case," the motion reads. "Such a clear and direct stake in the outcome would create a nonwaivable conflict, and recusal would have been mandatory. Chief Judge Walker thus had a duty to disclose not only the facts concerning his relationship, but also his marriage intentions, for the parties (and the public) were entitled to know."
To show that Walker must have been biased, Cooper points to the "extraordinary" string of rulings in the case, including his ruling in favor of gay marriage in the decision itself but also his initial order that the trial be televised a decision overruled by the Supreme Court and his refusal to grant a stay while the case was on appeal, a ruling reversed by the Ninth Circuit.
But courts have ruled, as Cooper's brief notes, that proof of bias on the part of a judge must go beyond the judge's rulings themselves. And like Chemerinksy, Abramson told TIME that he knew of no cases where a judge's sexual orientation had become an issue regarding his ability to hear a case. "On the other hand, there are cases where, for example, a judge who was a victim of child abuse as a young person was challenged about sitting in a child-abuse case. Recusal was not required. So even in a case that would appear extremely personal to the judge, perhaps conjuring up past pain, that was not deemed sufficient to require disqualification."
Still, even if Cooper is wrong to argue that Walker's interest in getting married an assertion he does not support with facts made him ineligible to hear the case, there still remain questions. Was Walker wrong to keep quiet about his orientation during the trial? Why not simply disclose it and continue with the case?
Abramson notes that such an approach "carries the most potential for transparency." But there's a downside too. If judges must reveal the personal details of their lives, they could end up being deposed by fact-finding attorneys hoping to unveil nuggets of their past.
The case is now in the hands of Chief Judge James Ware. Walker, retired since late February, has opened a practice specializing in mediation. He met with a handful of reporters early this month to discuss the case and his retirement. He said a judge's orientation, ethnicity, national origin or gender should never stop him or her from hearing a case, according to an account of the meeting published by Reuters. "That's a very slippery slope," Walker said.