American Foundation for Equal Rights

US District Court Hears Offensive Motion by Prop. 8 Anti-Marriage Forces

Judge Ware: You can’t simply assume that a judge who takes an oath to uphold the law and judge fairly is incapable of doing so.

**Ruling Expected Within 24 Hours**

San Francisco, CA – Forty-four years and a day after the United States Supreme Court declared marriage “one of the ‘basic civil rights of man,’ fundamental to our very existence and survival” (Loving v. Virginia), opponents of marriage equality today again argued that the rights of marriage should not extend to gay and lesbian couples.

Proponents of Prop. 8 argued that because retired US District Court Judge Vaughn Walker – who ruled Prop. 8 unconstitutional in August 2010 – was (and still is) in a relationship with a man during trial, he could not have been impartial and therefore his ruling should be thrown out.

The American Foundation for Equal Rights (AFER), the sole sponsors of Perry v Brown, called the move to disqualify Judge Walker “frivolous,” “offensive” and “deeply unfortunate.”

“The Proponents of Prop. 8 today advocated for a sweeping and completely unsupported standard for disqualification that would preclude hundreds of qualified, fair-minded judges from deciding some of the most important issues facing our country,” said Theodore J. Boutrous Jr., counsel for AFER. “Their standard is intended to, and would, prevent gay, lesbian or bisexual judges from impartially presiding over cases involving the rights of same-sex individuals and couples – an offensive suggestion that has been consistently rejected by the courts in similar cases involving race and sex discrimination.”

US District Court Chief Judge James Ware, who presided over today’s hearing, said that he would issue a decision within the next 24 hours.

Proponents argued that because Judge Walker was in a long-term relationship, then the issue of his intent to marry was applicable. Judge Ware said that there were no facts showing that Judge Walker wanted to get married, other than being in a long-term relationship. After lengthy questioning by Judge Ware, Proponents’ attorney Charles Cooper admitted that if Judge Walker didn’t want to get married, then there would be no bias.

Judge Ware said, “You can’t simply assume that a judge who takes an oath to uphold the law and judge fairly is incapable of doing so.”

Experts, judges and editorial boards have called Proponents’ motion to vacate judgment “preposterous,” a “non-issue,” “desperate,” “unthinkable,” and “the worst legal argument of the year.” Richard Painter, Chief White House Ethics lawyer under President George W. Bush, went so far as to call the motion leading to today’s hearing “frivolous” and “unfortunate.”

A second issue discussed at today’s hearing was in regards to the video recordings of the August 2010 trial. Judge Ware said he would rule on the issue of the release of the videotapes at a later date, but denied Proponent’s request to have Plaintiffs’ return their copy of the trial videotape.

Today, AFER released the names of more than 20,000 individuals who signed a petition advocating for the tapes’ release, noting that Proponents’ fierce determination to shield access to the trial videotapes directly conflicts with this nation’s constitutional commitment to a public and open judicial process.

AFER attorney Boutrous argued that releasing the trial videotapes would demonstrate that Proponents received a very fair trial from Judge Walker.

Responding to today’s hearing, Chad Griffin, AFER Board President noted, “Today’s hearing demonstrated yet again that the Proponents of Prop. 8 are extremists who will stop at nothing to keep committed American couples from marrying. They led a campaign that was homophobic and filled with animus. Just as those who opposed inter-racial marriage forty-four years ago, those who oppose the civil rights of gay and lesbian Americans will too find themselves on the wrong side of history.“

Over the past two years, a series of nationwide polls have recorded a strong shift in public opinion, with recent polls demonstrating that a majority of Americans now favor the freedom to marry for gay and lesbian couples. A Washington Post-ABC News poll in March 2011 revealed that 53% of Americans favor marriage for gay and lesbian couples, while Gallup’s recent annual Values and Beliefs poll showed that more Americans support marriage equality than oppose it.


About the American Foundation for Equal Rights

The American Foundation for Equal Rights is the sole sponsor of the Perry case. After bringing together Theodore B. Olson and David Boies to lead its legal team, AFER successfully advanced the Perry case through federal district court and is now leading it through the 9th Circuit Court of Appeals before the case is brought to the United States Supreme Court. The Foundation is committed to achieving full federal marriage equality.