One Day, Two Victories: Courts Reject Challenge In Prop. 8 Case; Declare DOMA Unconstitutional

From American Constitution Society's blog, June 15, 2011.

The gay marriage movement scored two victories yesterday in California, with a federal district court judge rejecting conflict-of-interest allegations in the decision to strike down Proposition 8, and a bankruptcy court holding the Defense of Marriage Act unconstitutional.

In federal district court, Chief U.S. District Judge James Ware held that his predecessor, Vaughn Walker, was not biased in his review of California’s same-sex marriage ban by the fact that he was in a long-term relationship with a man, the San Francisco Chronicle reports.

"It is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law solely because, as a citizen, the judge could be affected by the proceedings," Ware wrote.

In U.S. Bankruptcy Court for the Central District of California, a judge issued a “rare and sweeping ruling” holding that two legally married men should be allowed to file for bankruptcy jointly and that the Defense of Marriage Act, which would have precluded joint filing, violates the couple’s equal protection rights under the due process clause of the Fifth Amendment, The Recorder reports.

“In this court’s judgment, no legally married couple should be entitled to fewer bankruptcy rights than any other legally married couple,” Judge Thomas Donovan wrote.

Eighteen of Donovan’s 24 colleagues signed onto his ruling, which Penn State Law’s Samuel Bufford, a former bankruptcy judge on that court, called “highly unusual.”

The ruling on Proposition 8 was much less surprising, with legal ethics experts from across the political spectrum dismissing the challenge as “specious as well as desperate,” as Slate’s Dahlia Lithwick put it.
University of Minnesota law professor Richard Painter, former chief ethics counsel for President George W. Bush, called the allegations of bias “ludicrous” in a blog post in April, revealing the bias of those alleging misconduct, “both against a highly regarded federal judge and against an entire class of persons.”
In his ruling yesterday, Judge Ware reasoned that, if recusal were necessary in this case, recusal of minority judges would also be required in " most, if not all, civil rights cases."

As University of Maryland law professor Sherrilyn Ifill pointed out in The Root last August, similar arguments questioning the impartiality of black judges in civil rights cases were made 30 years ago, and reviving these arguments raises “the ugly specter of judicial bias based on status.”

The argument that Walker was biased because he viewed marriage as a “valuable legal right” also reveals precisely the reason why Proposition 8 was correctly struck down in the first place, UCLA law professor explained in The Huffington Post in May.

“It's a violation of the Constitution's command that all people be afforded ‘equal protection of the laws’ to deny people fundamental rights on the basis of irrelevant characteristics, like their race, sex, religion, or sexual orientation,” Winkler wrote. “Yet that is precisely what the ban on same-sex marriage does.”