Perry et al v. Schwarzenegger et al

Filing 780

Declaration of Enrique A. Monagas in Support of #779 Opposition/Response to Motion filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G, #8 Exhibit H, #9 Exhibit I)(Related document(s) #779 ) (Olson, Theodore) (Filed on 5/13/2011)

Exhibit H

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Essential News from The Associated Press
Apr. 26, 2011 9:02 PM ET

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Experts: Judge's sexual
orientation is non-issue
LISA LEFF, Associated Press
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SAN FRANCISCO (AP) — The sponsors of
California's same-sex marriage ban insist
they are not trying to disqualify the
federal judge who struck down
Proposition 8 because he is gay.
Instead, they argue the judge's decadelong relationship with another man poses
a potential conflict because they might
want to get hitched themselves.
Experts in judicial ethics said Tuesday
that carefully parsed line of reasoning is
unlikely to prevail.
They pointed out that while courts have
not yet had to wrestle with sexual
orientation as grounds for judicial recusal,
judges typically have rejected efforts to
remove jurists based on personal
characteristics such as race, gender,

In this photo taken Nov. 19, 2010, Chief
District Judge Vaughn R. Walker, of the
Northern District of California, speaks at a
legal conference in Seattle. The sponsors of
California's same-sex marriage ban say the
recent disclosure by Walker that he is in a
long-term relationship with another man has
given them new grounds to appeal the ruling
that struck down Proposition 8 last summer.
Walker retired from the bench at the end of
February. (AP Photo/Elaine Thompson)
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religion or even the contents of their
investment portfolios.
"I don't think this judge had any more
duty to disclose his sexual orientation
than a Christian or Jewish or Muslim

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discuss their sexual orientation," retired
Illinois state Judge Raymond McKoski
said.
At the center of the dispute is Chief U.S.
District Judge Vaughn Walker, who
issued the ruling last August declaring
Proposition 8 to be an unconstitutional
violation of gay Californians' civil rights.
"We are not suggesting that a gay or
lesbian judge could not sit on this case,"
attorneys for the backers of Proposition
8 wrote in their motion filed Monday to
overturn the landmark ruling. "Simply stated, under governing California law, Chief Judge
Walker currently cannot marry his partner, but his decision in this case ... would give him a
right to do so."
They claim Walker should have disclosed the relationship while presiding over the case and
said if he had any interest in marrying his partner.
DePaul University College of Law professor Jeffrey Shaman, co-author of a widely used
textbook on judicial conduct, said the fact that Walker was rumored to be gay from the
moment he randomly drew the Proposition 8 case "somewhat undercuts the argument that he
should have disclosed he was in a long-term relationship."
Lawyers for backers of the ban seem to be grasping at straws in making their argument
against the now-retired Walker, Shaman said.
"But it's their prerogative to do this as lawyers," Shaman said. "It might indicate they are
worried about the judge's opinion, which was such a strong opinion, and they are trying to
make an end run around it."
The Gay and Lesbian Victory Fund, a political action committee and recruitment organization
for gay politicians, said there are now 102 openly gay, lesbian, bisexual and transgender
judges in the U.S.
Only one, U.S. District Judge Deborah Batts in New York, serves at the federal level, although
President Barack Obama has nominated two gay men for federal judgeships but they have not
been confirmed.
Rumors that Walker was gay and had a long-term partner who accompanied him to social
functions circulated during the 13-day trial that preceded his decision and after he handed it

down. The judge declined to comment at the time.
Members of the Proposition 8 team openly complained about Walker's handling of the case and
accused him of favoring the same-sex couples who had sued in his court for the right to marry.
But they refrained from raising the specter of the judge's sexual orientation, saying media
reports and gossip were an unsound basis for legal strategy.
"The bottom line is this case, from our perspective, is and always will be about the law and not
about the judge who decides it," Jim Campbell, a lawyer with the Christian legal defense group
Alliance Defense Fund, told The Associated Press in August.
That might have remained their position if Walker, who retired in late February after two
decades on the federal bench, had not decided to end the speculation himself.
Earlier this month, Walker had a farewell meeting with a select group of courthouse reporters.
When the topic came up, Walker said he never thought about recusing himself because he was
gay and noted that no one had asked him to, according to the San Francisco Chronicle, which
had a reporter at the gathering.
The judge also revealed that he'd been in a relationship with a man he identified only as a
physician for a decade.
"If you thought a judge's sexuality, ethnicity, national origin (or) gender would prevent the
judge from handling a case, that's a very slippery slope," Walker said. "I don't think it's
relevant."
The lawyers who filed the motion to wipe out the judge's ruling declined to elaborate outside
their written arguments about why they concluded that Walker's comment about his partner
caused them to change course.
In their filing, they stated in a lengthy footnote that the burden for "maintaining impartiality
and the appearance of impartiality" lies with judges, and that it was not the place of the
lawyers to investigate Walker's private affairs.
Retired California state Judge Jeffrey Rothman said bias claims have arisen in the past
surrounding judges with strong religious views. But he noted that the bar for disqualification is
purposefully set high. Lawyers representing a clinic that performed abortions, for example,
would not be able to challenge a devoutly Catholic judge, he said.
"They would get absolutely nowhere with such a challenge unless that judge had gone out and
made statements or speeches saying he believed that Roe v. Wade ought to be overturned if
that case ever came before them," Rothman said. "The question is, can the beliefs be set aside
and the judge decide the case on its merits and be fair."
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