Prop 8: Motion to Vacate to Crazytown

BY ARI EZRA WALDMAN

As an Easter/Passover/Mid April present to the gay community, two of our opponents in the quest for equality played their hands. And, it looks like they're holding a pair of threes. Republicans will pay (now former) King & Spalding partner Paul Clement a hefty hourly rate to defend the almost laughably indefensible Defense of Marriage Act (DOMA) and the Prop 8 Proponents want Judge Vaughn Walker's decision declaring Prop 8 unconstitutional vacated — or, annulled, set aside, rendered void, tossed into the trash heap — because they just realized one of the longest serving gay federal judges is gay. Today, I would like to talk about the Prop 8 Proponents' motion to vacate.

On April 25, proponents of Prop 8 — who are still waiting to hear if the California Supreme Court will decide that California law allows citizen initiative proponents to defend their project in court (as we have discussed, a necessary, but insufficient requirement for standing in a federal court) — filed a motion with the Ninth Circuit to vacate Judge Walker's ruling striking down Prop 8. They argue that because Judge Walker is, and was at the time he presided over Perry, in a long term gay relationship, he was biased in favor of allowing gay couples to marry. After all, the argument goes, he's gay, has a partner and may want to get married if he could.

The problem with this argument is that it is patently offensive, miles south of ridiculous and worse still, just bad strategy. Let's discuss how AFTER THE JUMP…

The Prop 8 Proponents wish to emphasize that they are not homophobic or anti-gay or hateful. They find the filing of this motion "unfortunate". What's more, they do not base their conclusion of Judge Walker's bias on the fact that he is gay. Rather, it is because he is in a long term, committed gay relationship, thus making him "too similar to the plaintiffs in this case" who wish to marry their long term, committed gay partner. They argue that "if at any time while this case was pending before him, Chief Judge Walker and his partner determined that they desired, or might desire, to marry, Chief Judge Walker plainly had an 'interest that could be substantially affected by the outcome of the proceeding.'”

"Might desire"? Some commentators have jumped on the slippery slope bandwagon, comparing the Prop 8 Proponents' view to one that would prevent all women from presiding over an abortion trial. I decline to go that far for the simple reason that the Prop 8 Proponents' bias argument needs no help from me to make it sound ridiculous. Consider these two examples:

Most women would have to recuse themselves from abortion cases, but not pre-pubescent or post-menopausal women and women incapable of having children. They are too dissimilar to the woman seeking to exercise her right to choose what to do with her body. They cannot have children, so they could never "determine[] that they desired, or might desire, to" exercise their abortion rights.

Similarly, they are not saying that no one could ever be a family court judge who sits in judgment of child custody because he or she, at some point, "might desire" to sue a potential future spouse for custody of their potential future child. But, they are saying that no married man or women with a child (or any member of a couple with a child) could ever be a family court judge because "if at any time while" the child custody case "was pending…" the judge and his/her spouse decided "that they desired, or might desire, to" divorce, they would "plainly have an 'interest that could be substantially affected by the outcome of the proceeding.'"

Even without exaggerating and taking the argument for what it is, it is pretty ridiculous to exclude all women of child-bearing age from cases that involve child-bearing women. It is also ridiculous to exclude all black judges from trials involving the exercise of civil rights by African-American citizens.

The argument is also offensive. And, not just to gays. The argument applies to all judges. The notion that judges cannot divorce their personal views from the legal matters before them is offensive, to lawyers and judges and our entire system of justice. When I was in practice, I represented tobacco companies, multi-national corporations and record labels seeking to hoard control over music. I may have disagreed with them, but that does not mean that its purveyors lose the right to representation.

But, the Prop 8 Proponents' argument seems worse. Their argument is not about women or African-Americans or Jews or former prosecutors or any other group that could be prejudiced. Their argument is about gays, a group uniquely vulnerable to insidious stereotypes in common discourse as promiscuous, weak and sex-crazed. No one called Jews money-hungry during the Bernie Madoff scandal, yet mainstream conservatives took to FOX, CNN and MSNBC during the debate to repeal "Don't Ask, Don't Tell" to warn of unit discord, deaths and orgies under the presumption that gay men could not keep their hands off other men. And during every marriage equality debate, gays are the targets of vitriol about disease, selfishness and perversion. Such patently offensive comments were taken as legitimate arguments despite being as illegitimate as other gross stereotypes. We see those stereotypes in this motion to vacate. The motion is based on nothing more than the stereotype that gay men are consumed by their selfish desires, incapable of being professional and incapable of reason.

If these substantive arguments were not enough, the motion to vacate is just bad strategy. It is telling of how desperate the Prop 8 Proponents must be that they are willing to cry bias, an argument that usually offends judges. Absent obvious evidence of a conflict of interest, judges are loathe to have their impartiality — or that of their well-regarded colleagues — questioned. I witnessed this first hand, when, while waiting to deliver an argument in Chicago, Judge Frank Easterbrook, a tough appellate court judge, berated an American Airlines attorney who suggested that a district court judge was biased because he used to represent labor unions in practice 20 years ago. "How dare you," Jude Easterbrook said, "suggest that Judge … was anything but impartial without any evidence. You either reconsider your position or sit right down and hand this case to your associate."

This bad strategy will come back to haunt the Prop 8 Proponents. Already, public opinion is against them. Their substantative arguments are weak. And, if their anti-gay arguments at trial never go public, their homophobia is now a matter of public record. They have proven that Prop 8 and their arguments in defense of Prop 8 are based on nothing more than anti-gay stereotypes. It's ironic: It would take a biased judge for them to win.