Proponents of Prop 8’s motion to vacate ruling applies a double standard to gay judges, brief argues
SAN FRANCISCO (May 12, 2011)— City Attorney Dennis Herrera this morning filed San Francisco’s opposition to a motion to vacate the trial court’s ruling on Proposition 8 on the ground that Chief Judge Vaughn Walker was biased. Proponents of Prop 8 argued Walker’s failure to disclose his long-term, same-sex relationship made him unable to decide fairly whether gay people should get married and gave him a secret undisclosed interest in the outcome. Proposition 8, which was narrowly enacted in November 2008, eliminated marriage rights for same-sex partners in California.
“Proponents of Proposition 8’s latest legal skirmish is offensive and baseless, and I am confident that this attack on Judge Walker’s integrity will be rejected by the courts.” said City Attorney Dennis Herrera. “The idea that members of minority groups can’t rule fairly on issues of minority rights has been repeatedly and consistently rejected by the courts– it is not worthy of further debate. Civil rights are of vital importance to all of us, regardless of whether we are gay or straight, married or single.”
The City finds the proponents’ latest legal stunt unfounded on two grounds. First, their motion comes too late. Although the press reported that Judge Walker was gay months before he ruled that Prop 8 is unconstitutional, the City’s brief argues that proponents “waited until after he had ruled against them, after he had retired from the bench, after their appeal was fully briefed and argued, and after the Ninth Circuit raised serious questions” about their appeal, to file this motion. Past cases recognize that filing a late motion as proponents have done here shows that their real concern is not bias but the prospect that they will lose their case.
Second, the City’s brief argues, proponents’ motion boils down to the assertion that a gay judge cannot be fair when deciding whether allowing gay people to marry will hurt children, infringe on religious freedom and destroy the institution of marriage, as the Yes on 8 campaign argued, yet a heterosexual judge—even one who is married, has children, or belongs to a religion that rejects marriage rights for same-sex couples—could decide this case. The City’s brief further contends that the hypocrisy is not cured by proponents’ claim that their motion is based not on Judge Walker’s sexual orientation but on his relationship with another man. Under this theory, to be able to fairly decide cases like this one, gay judges must avoid relationships in order to decide cases about marriage rights. That isn’t the standard that straight judges are held to, the brief argues, and it shouldn’t be the standard here.
City Attorney Dennis Herrera has been at the forefront of the legal battle for marriage equality in California for the last seven years. His office was the first government entity in American history ever to sue to invalidate discriminatory marriage laws, and it is the only law office to be involved as a party in every aspect of the legal fight since 2004 — from defending then Mayor Gavin Newsom’s issuance of same-sex marriage licenses; to successfully suing to strike down the anti-gay marriage exclusion in the state courts; to challenging the discriminatory Proposition 8 in the California Supreme Court, and now as co-plaintiff in the federal courts with American Foundation for Equal Rights.
The motion will be heard by Chief Judge Ware of the United States District Court for the Northern District of California on June 13, 2011, at 9:00 a.m.
The case, Perry v. Brown, No. 09-CV-2292, was formerly known as Perry v. Schwarzenegger.
PDF of city’s opposition to defendant-intervenors’ motion to vacate judgment (May 12, 2011)