Bloomberg News

Gay Judge’s Decision on California Marriage Law Ruled Valid

June 15, 2011

June 15 (Bloomberg) -- A decision overturning California’s ban on same-sex marriage remains valid even though the federal judge who issued it didn’t disclose that he is gay and recuse himself before taking the case, another federal judge ruled.

U.S. District Judge James Ware in San Francisco said former U.S. District Judge Vaughn Walker didn’t have to disqualify himself from a trial over the constitutionality of California’s Proposition 8 ban on gay weddings and doing so would have set a “pernicious precedent” that would harm the integrity of the U.S. judicial system.

“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,” Ware said in his ruling yesterday.

“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,” Ware said.

He denied a request by proponents of Proposition 8 to void Walker’s August ruling. At a June 13 hearing, lawyers for the measure’s supporters said that because Walker had a potential interest in the outcome, he shouldn’t have presided over last year’s trial, the first federal proceeding over whether it is legal to ban people of the same sex from marrying.

‘Powerful Ruling’

“This is a powerful ruling that makes clear that gay and lesbian judges have the same presumption of fairness and impartiality” as other judges, Theodore Boutrous, an attorney for gay couples who sued to overturn Proposition 8, said yesterday in a conference call. “The proponents were really asking to put what the court said was inordinate burdens on minority judges.”

Two gay men who married before the ban was passed won the right in another court in California to file for bankruptcy as a couple in a ruling in which 20 judges said the U.S. Defense of Marriage Act was unconstitutional.

The ban on federal recognition of same-sex marriage can’t prevent a gay couple from filing a joint bankruptcy, a panel of judges ruled in the case of Gene Douglas Balas and Carlos A. Morales, who were one of about 18,000 gay couples wed in the state before the ban.

Balas supplied most of the couple’s income from his $200,000-a-year job in the financial industry before he was laid off in March 2009, he said in court records. The couple filed for bankruptcy in February after exhausting their savings and retirement accounts.

Bankruptcy Rights

“This case is about equality, regardless of gender or sexual orientation,” according to the June 13 ruling in U.S. Bankruptcy Court in Los Angeles. “In this court’s judgment, no legally married couple should be entitled to fewer bankruptcy rights than any other legally married couple.”

The U.S. Defense of Marriage Act bans federal agencies from recognizing marriages between same-sex couples. The judges, in their decision, ruled that the 1996 law violates the Fifth Amendment of the Constitution by treating married gay couples differently from married opposite-sex couples.

Attorneys for Proposition 8 proponents said they would appeal the ruling upholding Walker’s ruling in San Francisco.

“The legal team obviously disagrees with” the ruling, Charles Cooper, lead counsel for the measure’s sponsors, said in an e-mailed statement. “Our legal team will appeal this decision and continue our tireless efforts to defend the will of the people of California to preserve marriage as the union of a man and a woman.”

Walker, now retired from the bench, ruled there was “overwhelming” evidence that Proposition 8, the 2008 amendment to California’s constitution that states marriage is only between a man and a woman, violates equal protection rights.

Walker disclosed in April that he has been in a 10-year relationship with a man. He said he never considered recusing himself from the Proposition 8 case and didn’t consider his relationship relevant to it. Walker’s ruling was put on hold pending an appeal.

Ware said the Proposition 8 case could affect the general public in California, though it was based on the characteristics of just some Californians.

“The fact that a federal judge happens to share the same circumstances or characteristics 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,” he ruled.

Appeal Process

Before it deals with the question of whether Walker’s ruling was erroneous, a federal appeals court in San Francisco said it first needs the California Supreme Court to weigh in on whether the measure’s proponents had the right to defend the law at trial when state officials refused to. Proposition 8 was passed by 52 percent of voters in 2008.

Boutrous said yesterday’s ruling could be appealed and an appellate panel would have to consider whether Proposition 8 supporters have “standing” to challenge Ware’s decision.

In the bankruptcy case, the Office of the U.S. Trustee asked a judge to throw it out. The trustee’s office, which oversees bankruptcies, argued that because Balas and Morales are men, the Defense of Marriage Act prohibits the court from recognizing them as a married couple.

Obama, Boehner

President Barack Obama’s administration stopped defending the law in courts, saying it unconstitutionally discriminates against gays and lesbians. That decision prompted House Speaker John Boehner, an Ohio Republican, to authorize the House’s top lawyer to take over that task.

The House Bipartisan Legal Advisory Group, working with the U.S. Trustee, didn’t intervene in the case though it said it was considering doing so, according to the June 13 opinion.

Michael Steel, a spokesman for Boehner, didn’t immediately return a call seeking comment yesterday.

The case is Perry v. Schwarzenegger, 3:09-cv-02292, U.S. District Court, Northern District of California (San Francisco). The bankruptcy case is In re Gene Douglas Balas, 11-17831, U.S Bankruptcy Court, Central District of California (Los Angeles).

--Editors: Michael Hytha, Douglas Wong

To contact the reporters on this story: Karen Gullo in San Francisco at; Steven Church in Wilmington, Delaware, at

To contact the editor responsible for this story: Michael Hytha at; John Pickering at

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