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What to Expect From Today’s Hearing in the Perry Case

Prop 8 trial Trial analysis

Please welcome Shannon Price Minter and Christopher F. Stoll from the National Center for Lesbian Rights for a guest post preview of what to expect today.

Shannon, who is Legal Director, served as lead attorney on In re marriage cases in 2008, in which the California Supreme Court ruled that limiting marriage to opposite-sex couples is unconstitutional. Christopher, Senior Staff Attorney with NCLR, served as co-counsel on that case and many other cases as part of NCLR’s “Marriage Team”. Previously, both took legal-oriented questions and provided answers live from the Prop8TrialTracker community on the Perry case and the appeals process, the transcripts of which can be found here and here -Adam

By Shannon Price Minter and Christopher F. Stoll, National Center for Lesbian Rights

Today, the U.S. District Court in San Francisco will hold a hearing in the Perry case to consider a motion filed by the supporters of Proposition 8.  The Prop 8 supporters are arguing that Judge Walker’s August 2010 decision invalidating Prop 8 should be set aside because he is gay and in a long-term relationship, and for that reason alone, should have declined to preside over the Perry trial.  The Prop 8 supporters’ motion raises a barely-updated version of an old, offensive, and discredited argument:  that a judge may be disqualified from hearing a case based on a personal characteristic such as race, sex, or sexual orientation.

As readers may recall, then-Chief Judge Vaughn R. Walker presided over a three week trial in January 2010.  That August, Judge Walker issued a thorough, detailed,  and carefully-reasoned 136-page opinion discussing the overwhelming evidence that the campaign to pass Prop 8 played on long-standing prejudice and stereotyping against gay and lesbian people.   Judge Walker ruled that Prop 8 is unconstitutional because it serves no legitimate purpose and marks same-sex relationships as unequal  and undeserving of recognition and protection.  The case is now on appeal before the Ninth Circuit Court of Appeals.

Judge Walker announced that he was retiring in September 2010.  After retiring, he gave an interview in which he discussed his relationship with another man.  This spring, the supporters of Prop 8 filed a motion in the district court to “vacate”—in other words, to invalidate—Judge Walker’s decision, arguing that that Judge Walker had a personal interest in the case because theoretically he could decide to marry his partner if Prop 8 is invalidated.  The new Chief Judge, James Ware, will hear and decide the motion.

It is important to place this motion in historical context.  The Prop 8 supporters’ argument is far from new: for as long as civil rights cases have been litigated in this country, opponents of equality have accused minority judges of bias — of somehow being less able than other judges to rule impartially on important constitutional issues that by definition affect not just minority groups, but everyone.

In a famous 1975 case, a law firm that had been sued for sex discrimination argued that Judge Constance Baker Motley should recuse herself, accusing her of “‘strongly identif[ying] with those who suffered discrimination in employment because of sex or race’” because she was a woman and had worked as a civil rights advocate prior to becoming a judge.  Judge Motley correctly explained, “If background or sex or race of each judge were, by definition, sufficient for removal, no judge on this court could hear this case[.]”   U.S. Supreme Court Justice Ruth Bader Ginsberg has memorably recounted the case and Judge Motley’s remarkable career here.

Similarly, in a 1984 case, the Tenth Circuit Court of Appeals rejected the argument that a Mormon judge in Utah should have recused himself from a case that challenged the religious power structure in Utah.

It is fortunate for our judicial system that this insidious argument has never gained traction.  Like all people, judges have personal characteristics like race, sex, religion — and sexual orientation.  The courts have recognized repeatedly that these common human characteristics provide no basis for challenging a judge’s ability to decide important questions of civil rights fairly and impartially. Our judicial process is founded on the principle that judges will put any personal or political bias aside and rule on every case based on the law and the facts before them—and that is exactly what Judge Walker did last year.

The Prop 8 supporters will likely focus on Judge Walker’s relationship, arguing that because Judge Walker might someday wish to marry his partner, he had a personal stake in the outcome of the Perry trial.  But any unmarried judge, partnered or not, might someday wish to marry.  The Prop 8 supporters’ argument is just a smokescreen for their real point: that no gay or lesbian judge could ever be trusted to rule fairly on a case seeking marriage equality for same-sex couples.

At today’s hearing, Judge Ware will hear arguments from counsel for the Prop 8 supporters, followed by arguments from Theodore Boutrous, who represents the couples who challenged Prop 8, and from the San Francisco City Attorney’s office, which is also a party in the case.  Judge Ware may issue an order from the bench immediately following the arguments, or he may issue a written opinion later. There is no set time within which Judge Ware must decide the motion, but it is likely that he will issue a decision within a few weeks after the hearing.

We hope and believe that after considering the long and shameful history of attempts to disqualify judges based on personal characteristics, Judge Ware will resoundingly reject this offensive and desperate tactic by the Prop 8 supporters.


  • 1. LCH  |  June 13, 2011 at 7:57 am


  • 2. Kate  |  June 13, 2011 at 8:10 am

    Glitch for today's live-blogging: Comments sent from iPhones are only showing up on other iPhones; they are NOT posting to the main site where they can be read via PC or Mac. Only other iPhone/iTouch users will be able to read them. They DO show up in the "recent posts" area, but they cannot be read without using an iPhone/iTouch. This is related to the glitch we found with Bonobo's post; she apparently posted with her iPhone or iTouch, not with a laptop or desktop. I fear this means that we won't be able to read the live posts being sent from the hearing this morning………..

  • 3. LCH  |  June 13, 2011 at 8:19 am

    Thanks for the heads up…off to use the iphone!

  • 4. adambink  |  June 13, 2011 at 8:22 am

    A weird glitch we're looking into, but no, it won't affect updates on phones. I have one myself.

    If you have a dispatch – photo or otherwise – e-mail it to adam at couragecampaign dot org, rather than posting, while we're looking into it.

  • 5. Kate  |  June 13, 2011 at 8:27 am

    You're right that it updates on phones, but those posts don't show up on the site while using a desktop or laptop. Just phones.

  • 6. adambink  |  June 13, 2011 at 8:32 am

    That's correct, Kate. As I said, working on it.

  • 7. SBfamily  |  June 13, 2011 at 9:05 am

    Help I would love to know what's going on in the hearing…. oh please oh please

  • 8. Meghan  |  June 13, 2011 at 8:19 am

    What do we know about Judge Ware and prior rulings / opinions, or his political affiliation / appointment to the bench?

  • 9. Kate  |  June 13, 2011 at 8:19 am

    We know that he defaulted on the payments for his boat………..

  • 10. Coxhere  |  June 13, 2011 at 8:20 am

    The State of California has refused to represent in appeal the homophobic supporters of Proposition 8. Has there been a ruling that Imperial County (or any other homophobes) has/has not a legal right to support Pro 8 in appeal? If so, when did this happen?

  • 11. AnonyGrl  |  June 13, 2011 at 8:47 am

    Basically, (and I am doing this quickly from memory) Imperial County tried to get in on the original case and were turned away as having no standing. Imperial then tried to get in on the appeal with the assistant county clerk and were turned down by the 9th Circuit because the county clerk should have been the one filing and did not (she was not interested in the case, which is why the proponents grabbed the assistant clerk) and the assistant had no standing to override her boss's decision. A new county clerk was subsequently elected, and has asked to get in even though it was well past the filing date., and there has been no ruling yet.

    The standing issue has been refered by the 9th Circuit court back to the State Supreme Court for clarification of state law. While not binding, the 9th Circuit is likely to use that information in their decision on who has standing to appeal Judge Walker's ruling. That decision is expected from California after they return from their summer recess.

  • 12. Coxhere  |  June 13, 2011 at 8:58 am

    Thanks for your response. I assumed (incorrectly) that "supports of Prop 8" cannot challenge Judge Walker's fitness to have heard the case because they have no standing in the appeal. Evidently, these homophobes' challenge of Walker is a separate matter. Incredible to what lengths these bigots will go to deprive Americans of marriage equality.

  • 13. AnonyGrl  |  June 13, 2011 at 11:41 am

    As to today's motions, they do have the right to file these because they relate to the previous court case, where they had standing. The motions today are not related to the appeal they are related to the original case. I think.

    So yes, the challenge of Walker's lack of recusal, which does not require the standing issue to be resolved, is not the same as the appeal, which does require standing.

    As has been noted elsewhere, in most civil rights cases, at one point or another, the eventual losers (that is, those who stand against equal rights) have tried a similar tactic, and it has, historically, always failed.

  • 14. Kate  |  June 13, 2011 at 8:29 am

    Adam, does that mean you'll be live-blogging from a desktop or laptop and not from a phone? That would be TERRIFIC.

  • 15. adambink  |  June 13, 2011 at 8:33 am

    I am perched at my laptop at home. Rick and the rest of the team are sending in dispatches over e-mail. Systems go!

  • 16. Kate  |  June 13, 2011 at 8:34 am

    Thank you, Adam — that is wonderful news. I thought you were at the courthouse with your iphone instead.

  • 17. Ronnie  |  June 13, 2011 at 8:30 am

    Woah, that's a lot to read…..subscribing & sharing…. <3…Ronnie:

    Former Tennessee congressman Harold Ford Jr. is a New Yorker who supports Marriage Equality.

    "I’m proud to say that my views on this issue of marriage equality have changed. I’ve listened and I’ve learned. I believe committed gay and lesbian couples in New York sould be able to marry. So join me and the super-majority of New Yorkers who view this issue as matter of basic fairness. It’s time to get this done."

    [youtube g66Eso9I-qQ&feature=player_embedded youtube]

  • 18. AnonyGrl  |  June 13, 2011 at 8:50 am

    I LOVE the concept of the "Super-majority" being on the side of civil rights and equality. Super-majority. It really is heart warming.

  • 19. Michael  |  June 13, 2011 at 8:35 am

    Does anyone know if there is a live video feed?

  • 20. adambink  |  June 13, 2011 at 8:53 am

    I am told there is not.

  • 21. Sagesse  |  June 13, 2011 at 8:49 am

    Subscribing. Not sure which subscription mechanism is working… the RSS button at the top of the comments, or this one. So I use both.

  • 22. rick jacobs  |  June 13, 2011 at 8:53 am

    Arisha, Ana and I are all inside. Ana's in overflow. Should be fun, if short.

  • 23. Kate  |  June 13, 2011 at 8:54 am

    Short would definitely be to our advantage!

  • 24. AnonyGrl  |  June 13, 2011 at 8:54 am

    Go Rick! 🙂 And Arisha! And Ana!

    Thanks for being there for those of us who can't be.

  • 25. Carol  |  June 13, 2011 at 8:56 am

    How does Judge Ware even have jurisdiction to consider this motion, since the validity of Judge Walker's decision on the merits is already on appeal?

  • 26. jpmassar  |  June 13, 2011 at 8:56 am

    WTF? It says I am logged in at the top of the page and it says 'logout' at the bottom of the page but when I try to submit a comment it demands that I log in.

  • 27. JC (one of the 18,000 couples in CA)  |  June 13, 2011 at 9:02 am

    I have to say how exciting it is to be here in the actual courtroom, but odd at the same time not to be hitting the refresh button constantly at home 🙂

  • 28. Bob  |  June 13, 2011 at 9:03 am

    All set,,, watching from Canada

  • 29. SBfamily  |  June 13, 2011 at 9:07 am

    how can anyone "watch"? Where is the live blogging?

  • 30. SBfamily  |  June 13, 2011 at 9:07 am

    How can anyone watch? where is the live blog? help?

  • 31. adambink  |  June 13, 2011 at 9:10 am

    In the new thread above this one.

  • 32. Alan E.  |  June 13, 2011 at 9:09 am

    I’m sitting here with Ann S. I’m not sure if you can read this, but is there an update on lunch? I sent In an email.

  • 33. DazedWheels  |  June 13, 2011 at 9:10 am

    There's a new thread for the live blog. Just saw it by going back to

  • 34. adambink  |  June 13, 2011 at 9:23 am

    The live-blogging thread can be found by clicking here.

  • 35. Carol  |  June 13, 2011 at 9:41 am

    Thanks, Christian, I missed that. My question was because ordinarily when a judgment is appealed, the trial court loses jurisdiction to the appellate court for most but not all purposes, but certainly as to the validity of the judgment that is being appealed from. And here they're arguing Judge Walker's judgment is invalid because he didn't disclose his relationship.

  • 36. peterplumber  |  June 13, 2011 at 10:06 am

    (No shit Sherlock. That’s why you lost the case.)

    Don't make me laugh so hard. I have serious work to get done today! 😀

  • 37. Rick  |  June 13, 2011 at 11:22 am

    Judge Ware: "I am always hesitant to adopt reasonableness test because we deal with people." Priceless!

  • 38. hillcrester  |  June 13, 2011 at 1:05 pm

    I am not a “member” of the LGBT movement, but I live in Hillcrest (San Diego) CA, a community whose many highly-visible openly-gay, etc. members are widely accepted as neighbors, restauranteurs, professionals, etc. I find this outrageous attack on the independence of the judiciary a threat to my recourse to the law and quite unstttling. I hope Judge Ware is able to frame a rejection of the petitioners’ claim so solidly that it will withstand any further appeal and, most desirably, deter any effort to proceed farther.

  • 39. Jim  |  June 13, 2011 at 7:01 pm

    I'm sorry if this is already posted, but I think it's an important point: since Walker was in a 10 year relationsihp, he was able to get married between June 2008 to Nov 2008, but didn't. So, that proves he didn't want to get married.

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