District judge rejects recusal in Prop 8 litigation

Chief Judge Ware of the United States District Court for the Northern District of (the District of) California earlier today rejected a motion by Prop 8 supporters to vacate Judge Walker's decision invalidating Prop 8, on the ground that Walker, who was in a long-term same-sex relationship, should have recused himself or at least disclosed that relationship.

Three important pulls from the decision.

First, the court adopts as its controlling principle an idea I floated in a prior post:

In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristic 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 . . .

Second and related, the court declined to hold that Judge Walker's status as a gay man (or gay man in a committed relationship) gave him a greater interest than the rest of the public.

[I]t is inconsistent with the general principles of constitutional adjudication to presume that a member of a minority group reaps a greater benefit from application of the substantive protections of our Constitution than would a member of the majority. The fact that this is a case challenging a law on equal protection and due process grounds being prosecuted by members of a minority group does not mean that members of the minority group have a greater interest in equal protection and due process than the rest of society. In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right.

And note that the court could go there without even having to touch on the argument that same-sex marriage affects/harms opposite-sex marriage.

Third, on the issue of whether Walker should have disclosed his sexual orientation and relationship status, the court suggested that Walker was right not to do so and that doing so out of an overabundance of caution would have set a "pernicious precedent" by promoting a practice of judges disclosing highly personal information in future cases, a practice that itself would be detrimental to the judiciary.

I am curious to see whether Prop 8 supporters feel strongly enough to push this issue in the Ninth Circuit.