American Foundation for Equal Rights

US District Court Denies Anti-Marriage Forces’ Motion to Vacate Prop. 8 Decision




Elizabeth Riel 213.785.5352 or
Brandon Hersh 202.412.9766 or

In  Major Victory for Marriage Equality, Chief Judge James Ware Says Motion Would Result in an “unworkable standard for disqualification”

San Francisco, CA – Today, in an historic and forceful decision, US District Court Chief Judge James Ware denied Proposition 8 Proponents’ motion to vacate judgment stating, “Disqualifying Judge Walker based on an inference that he intended to take advantage of a future legal benefit made available by constitutional protections would result in an unworkable standard for disqualification.”

Proponents of Prop. 8 argued that because retired US District Court Judge Vaughn Walker – who ruled Prop. 8 unconstitutional in August 2010 – was in a long-term relationship with another man during trial, his ruling should be thrown out.

The American Foundation for Equal Rights (AFER), the sole sponsor of Perry v. Schwarzenegger, hailed Chief Judge Ware’s decision as a victory for fair-mindedness and a defeat for extremists who seek to re-design the judicial system based on stereotypes and prejudice instead of facts and rule of law.

This is a powerful ruling that makes clear that gay and lesbian judges are entitled to the same presumptions of fairness and impartiality as all other federal judges and that rejects the false and  unreasonable assumptions and stereotypes that the Proposition 8 Proponents asserted in this deeply offensive motion,” said AFER attorney Theodore J. Boutrous, Jr.  “Other courts will look to this decision for many years to come. We are also pleased to see that Chief Judge Ware addressed the issue of equal protection in which all members of society have a stake.”

In his ruling, Chief Judge Ware discussed the issue of equal protection as such: “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.”

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

Responding to Chief Judge Ware’s decision, Chad Griffin, AFER Board President said, “This is an historic victory for justice and marriage equality. Chief Judge Ware’s ruling makes it very clear that bigotry and hatred have no place in our judicial system and that the anti-marriage forces’ extreme and unsupported antics have no place in a court of law and indeed, in our society.  The freedom to marry is a Constitutional right for all Americans and AFER will not rest until we have full marriage equality for all our citizens.”

Also from Chief Judge Ware’s decision:

“[The notion 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. On the contrary: 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. The Motion fails to cite any evidence that Judge Walker would be incapable of being impartial, but to presume that

Judge Walker was incapable of being impartial, without concrete evidence to support that presumption, is inconsistent with what is required under a reasonableness standard.”


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.