Prop 8, If the Judge Ain't Straight You Must Vacate

With Judge Walker's recent admission that he does in fact practice homosexuality, the case for recusal has been proven. His ruling on the Prop 8 case should be immediately vacated as he possessed both an incontrovertible and disqualifying conflict of interest. The code of judicial conduct requires that a judge step down from a case if "the judge's impartiality might reasonably be questioned"

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P>LYNCHBURG, VA (Liberty Counsel) - Proposition 8 is an amendment to California's State Constitution. It was passed by a comfortable margin via ballot initiative in 2008. Prop 8 maintained the age-old definition of marriage in the Golden State as requiring binary male-female compatibility. It remains tied-up in Federal Court today. 

Back in February of 2010 it became rumored that retired Federal Judge Vaughn Walker - who presided over the case at the District level - was a practitioner of the homosexual lifestyle. It was further reported that he had a longtime male lover. Judge Walker refused to confirm or deny the rumors. At the time I was one of the few people to publicly call for his recusal. It's inexplicable that attorneys defending Prop 8 didn't make such a motion.

With Judge Walker's recent admission that he does in fact practice homosexuality, the case for recusal has been proven. His ruling on the Prop 8 case should be immediately vacated as he possessed both an incontrovertible and disqualifying conflict of interest.

Federal law is clear. The code of judicial conduct requires that a judge step down from a case if "the judge's impartiality might reasonably be questioned," or when he "has a financial ... or any other interest that could be affected substantially by the outcome of the proceeding."

By manufacturing from thin air a Constitutional "right" to same-sex "marriage" - something the Framers of the US Constitution could not have conceptualized, much less endorsed - Judge Walker abused his position on the bench to create for himself a new privilege that he previously did not possess. It's undeniable that he had an "interest that could be affected substantially by the outcome of the proceeding." 

Stemming from his own bizarre and contrived legal findings in the case, Judge Walker's ruling made it possible for both he and his male sexual partner to "marry." Prior to his ruling he could not. Subsequent to his ruling - and if the ruling is upheld - he could. This is not opinion. It's an objective matter of fact. Judge Walker unilaterally and arbitrarily gave himself a newfangled "right."

Furthermore, the U.S. Code, Section 455 (a) states: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." U.S.C. Section 455 (b) (1) also states that a judge must be disqualified if he "has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding."

No reasonable person can deny that Judge Walker held a "personal bias" as his decision directly affected him on a very personal level.

A few proponents of so-called "gay marriage" have slapped me in the face with the following red herring: "Why, using your logic a heterosexual judge would also have to recuse himself. No judge could ever preside over a case involving same-sex 'marriage.'"

This is apples-to-oranges nonsense. On a case concerning the novel question of radically redefining marriage to include same-sex pairs, a heterosexual judge, by definition, would not possess a personal "interest that could be affected substantially by the outcome of the proceeding." A heterosexual judge is precisely what Federal law requires under such circumstances.   

By analogy, if a Federal Judge were presiding over a case to determine the merits of a new gambling law, and that judge happened to have a gambling addiction, law would require that he recuse himself due to a clear conflict of interest. At a minimum, "the judge's impartiality might reasonably be questioned."

Or consider an instance where a judge crossed state lines to legally use medical marijuana for cancer treatment. If he were later presented with a case covering issues related to the legality of medical marijuana, he would necessarily be disqualified and also expected to recuse himself.

An honorable man - an honorable judge must step down from any case where there is even the remote appearance of a conflict. In Judge Walker's situation, the conflict proved to be absolute.

His was the textbook example of a conflict requiring recusal. It's now the textbook example of judicial activism. This outrageous decision must be vacated and attorneys defending Prop 8 should immediately file a motion to that effect.

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J Matt Barber (jmattbarber@comcast.net) is an attorney concentrating in constitutional law. He serves as Vice President of Liberty Counsel Action. Facebook/jmattbarber / Twitter/@jmattbarber (This information is provided for identification purposes only.)   

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Liberty Counsel is a nonprofit litigation, education and policy organization dedicated to advancing religious freedom, the sanctity of human life and the traditional family. Established in 1989, Liberty Counsel is a nationwide organization with offices in Florida, Virginia, and Washington, D.C., and hundreds of affiliate attorneys across the Nation.