# Prop 8 trial update: Walker's ruling upheld **URL:** \ **Category:** Great Debates\ **Created:** [June 14, 2011, 10:31pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500 "2011-06-14T22:31:20Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![monstro](https://avatars.discourse-cdn.com/v4/letter/m/ba9def/32.png) [@monstro](https://boards.straightdope.com/u/monstro)\ **Post date:** [June 15, 2011, 10:38am UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/21 "2011-06-15T10:38:45Z")
> [@CitizenPained](#): > > Let’s say SF’s circumcision ban gets passed and the matter comes before a Jewish judge. Is there going to be speculation about it? Of course! But does this mean Jews can’t judge on these matters? Or should any circumcised male (oh god, this would be funny if this does come up and opponents to circ demand that the judge is a non-Jewish female or something) recuse himself? No. Because whatever the ruling is, it will not personally affect them. Their foreskins will not magically reappear. Ultimately, all rulings from the courts affect everyone, including the judges themselves. To determine if there is a conflict of interest, you have to decide if _there is evidence_ that the judge has more to gain by his decision than the general population or that they’ve been actively advocating for a certain position outside of the bench. One could argue that you don’t want a straight person listening to gay marriage arguments because they might believe that whole “sanctity of marriage” thing and they won’t want a whole bunch of gays “ruining” their union. That’s a bunch of crap, but that’s the right-wing social conservative argument. But of course, not all straight people feel this way. Nor do all conservatives. You have to have evidence before you accuse people of believing a certain way. Simply belonging to a group is not evidence enough. ---
**Author:** ![Recovering\_Republican](https://avatars.discourse-cdn.com/v4/letter/r/d2c977/32.png) [@Recovering\_Republican](https://boards.straightdope.com/u/Recovering_Republican)\ **Post date:** [June 15, 2011, 11:03am UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/22 "2011-06-15T11:03:44Z")
I think the recusal standard is, “Will the judge directly benefit from his ruling”, not “Can the ruling possibly affect my life.” If Walker and his partner applied for a marriage license but were shut down by the vote, then legitimately, he should have recused himself. But they didn’t even apply for “domestic partnership”. The real problem the pro Prop 8 people have is that they didn’t make a very good case in front of Walker to start with. They only produced 2 witnesses out of 16 they promised, and one of those witnesses had to admit his own premise- that gays aren’t capable of being good parents- was flawed. The other thing is that Walker specifically crafted his finding to have federal implications, meaning that if the ruling is upheld, it not only invalidates Prop 8, but all state restrictions. And he specifically cited past ruling by Justice Kennedy as his basis. Kennedy would have a very hard time walking them back. ---
**Author:** ![boytyperanma](https://avatars.discourse-cdn.com/v4/letter/b/4491bb/32.png) [@boytyperanma](https://boards.straightdope.com/u/boytyperanma)\ **Post date:** [June 15, 2011, 11:22am UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/23 "2011-06-15T11:22:21Z")
> [@CitizenPained](#): > > I didn’t say anything about who is capable. But not all blacks support affirmative action, and not all women support abortion or think that they’re being discriminated against. Conservatives have proved that. > > I just feel like 99 per cent of gays support same sex marriage. 😛 > > And women are _half_ of the electorate, whereas gay men are like 2-3 per cent. When a conservative Republican judge tries a case, the liberals have a cow, right? And aren’t SCOTUS decisions usually analyzed when voted along party lines? > > I’m asking if there was precedent. I think one thing you are overlooking is both sides knew Walkers sexual orientation long before he made any ruling. They discussed this and no one(involved in the case) objected at the time. It wasn’t until after his ruling and his retirement he revealed he was in a long term relationship. At that point the prop 8 supporters decided it was a conflict of interest for him to rule on the case. I guess it’s OK for him to be gay it’s just not OK for him to be gay and be in a relationship. A celibate or promiscuous gay is qualified to rule just not Walker. The end result is their objection was another last ditch effort to block the ruling. They can’t make a strong case against the ruling so the next step is to attack Walker. ---
**Author:** ![Recovering\_Republican](https://avatars.discourse-cdn.com/v4/letter/r/d2c977/32.png) [@Recovering\_Republican](https://boards.straightdope.com/u/Recovering_Republican)\ **Post date:** [June 15, 2011, 11:29am UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/24 "2011-06-15T11:29:04Z")
> [@gatorslap](#): > > This was just the side issue of whether Walker’s ruling should be vacated on the grounds that he he had a conflict of interest and should have recused himself. As the answer was no, nothing changes. > > The case itself is still waiting for appeal. The 9th Circuit Court of Appeals certified a question to the California Supreme Court about whether, under California law, the backers of Prop 8 alone have standing to appeal the case when the state officials who normally do that sort of thing decline to do so. Right now we are waiting on that ruling (expected in a few months), and if they rule yes to that question, the case will then be heard in the appeals court. If they rule that Prop 8 proponents lack standing, the issue dies there, Prop 8 is overturned, and same-sex marriage becomes legal in California again – but no states outside of California are affected and no precedent is set. so the ironic thing is, by losing the homophobes might actually win. If they lose the appeal, then it counts for all the 9th Circuit states. Perhaps the whole country if the SCOTUS upholds it. If it isn’t heard, then it just stands for California. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [June 15, 2011, 11:42am UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/25 "2011-06-15T11:42:20Z")
Merged **CitizenPained** ’s thread into **YogSosoth** ’s because they’re about substantially the same topic- Prop 8, Judge Walker, and the appeal of Walker’s ruling. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 15, 2011, 1:38pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/26 "2011-06-15T13:38:37Z")
A judge should recuse himself when he has a direct or personal stake in the outcome. But merely being a part of the general public is not sufficient to create that condition. A judge who rules against the government on a Fourth Amendment car search question cannot be challenged because he himself drives a car and thus may one day be subject to the same type of search at issue in the case. In this case, the objection is that Judge Walker may wish to marry someday. That’s true of any un married person. No grounds for his recusal here. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [June 15, 2011, 3:53pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/27 "2011-06-15T15:53:53Z")
> [@John\_Mace](#): > > I don’t see how the could rule in such a way that it only legalized SSM in CA. If they chose not to take the case, then it would stay legal in the 9th Circuit only. As I understand it, since the Proposition was CA only, then the court could rule that those challenging the prop didn’t have standing, thus couldn’t challenge the ruling, and as a result Prop 8 would be as if it never happened, thereby rescinding the ban on gay marriage and putting into law the original decision made by a panel of judges in May or June of 2008 that a ban on gay marriage violates the California State Constitution. Other judges in other states within the 9th Circuit would have to determine for themselves whether or not gays could marry. That’s my understanding of it > [@CitizenPained](#): > > I was kind of disappointed to learn that Judge Walker was gay as it seemed to give ‘credence’ to The Other Side about claims of a gay agenda and whathaveyou. > > But then I thought about it, and I wondered if gay rights groups would be up in arms if it turned out that Walker was, I donno, a member of a rightwing Christian organization? > > Somehow the fact that Walker belongs to a tiny minority of the people he’s ruling on seems…odd. Why not just disclose that? > > So my question (and it’s in GD because that’s where it will end up anywho) is: > > **Would anyone have really expected Walker to recuse himself/disclose that information? Would the gay rights groups (aka the good guys) be up in arms if it was found that he was a member of the AFK or had very conservative viewpoints on this issue?** > > Is there any ethical precedent here that sticks? > > One the one hand, it doesn’t seem right to use someone’s sexual orientation against them. On the other, it seems odd to not notice it. I mean, how many times have I heard pro-choice groups lament, “Oh, if only men could have babies…abortion would be a mandate.” Yes, there is an ethical precedent. Reading some of the articles on the decision, I noticed that it was mentioned that in no time in US history has a court vacated a decision by a judge for what he is (ie. a particular race, gender, etc.). Though it may smell fishy, nobody wants to set that precedent. Sometimes, the lesser evil still looks evil, and I’m saying that as a pro-gay marriage person. It does look a little iffy that Walker was gay and he made this decision However, and here’s the important thing, it only\*\*\* looks \*\*\*iffy. I believe gay people can be impartial just like any other sexual orientation. And what is absolutely paramount that we _ **don’t** _ do is set a precedent in which a person’s inherent qualities (ie. sexual orientation, race, height, etc.) is used to say whether or not he’s qualified. So in this decision, it not only doesn’t matter whether Walker is gay, but it shouldn’t matter, and we should all make sure that we never go down that road. Otherwise, women judges couldn’t rule on women issues, blacks couldn’t rule on civil rights issues, and neither gays nor straights can rule on sexual orientation issues. It’s a slippery slope that we cannot ever ever set, no matter how it looks ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [June 15, 2011, 3:57pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/28 "2011-06-15T15:57:41Z")
> [@CitizenPained](#): > > And women are _half_ of the electorate, whereas gay men are like 2-3 per cent. When a conservative Republican judge tries a case, the liberals have a cow, right? And aren’t SCOTUS decisions usually analyzed when voted along party lines? Yes, we have a cow. But what we want and what is legal is different. I would love to have Thomas and Scalia never judge another case again, due to their being crazy, but I have to grit my teeth and bear it just as homophobes have to grit their teeth and accept that Walker’s decision was correct ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 15, 2011, 4:01pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/29 "2011-06-15T16:01:06Z")
> [@YogSosoth](#): > > As I understand it, since the Proposition was CA only, then the court could rule that those challenging the prop didn’t have standing, thus couldn’t challenge the ruling, and as a result Prop 8 would be as if it never happened, thereby rescinding the ban on gay marriage and putting into law the original decision made by a panel of judges in May or June of 2008 that a ban on gay marriage violates the California State Constitution. Other judges in other states within the 9th Circuit would have to determine for themselves whether or not gays could marry. That’s my understanding of it I don’t think so. The challenge is to a US District court opinion, upheld (presumably) by a US Circuit Court. It’s a challenge against the US Constitution, not the CA constitution. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [June 15, 2011, 4:03pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/30 "2011-06-15T16:03:37Z")
> [@John\_Mace](#): > > I don’t think so. The challenge is to a US District court opinion, upheld (presumably) by a US Circuit Court. It’s a challenge against the US Constitution, not the CA constitution. Well then I’m not sure. I’ve been trying to follow the case but it’s dragged out so long I’ve forgotten many details. I hope that what you’re saying is true though, I’d love to have our liberal 9th Circuit set the precedent for the entire country to allow gay marriage. Letting states like Mississippi determine it for themselves might take them a while, as they only officially banned slavery in 1995 ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 15, 2011, 4:20pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/31 "2011-06-15T16:20:10Z")
> [@YogSosoth](#): > > Well then I’m not sure. I’ve been trying to follow the case but it’s dragged out so long I’ve forgotten many details. It has indeed been a long and torturous path, and for that reason I am not 100% certain, but I’m reasonable sure I’m right. > [@](#): > > I hope that what you’re saying is true though, I’d love to have our liberal 9th Circuit set the precedent for the entire country to allow gay marriage. They don’t actually set precedent, but they can be influential. IOW, another circuit is free to rule differently. > [@](#): > > Letting states like Mississippi determine it for themselves might take them a while, as they only officially banned slavery in 1995 For some states, I suspect “never” is accurate enough given the time involved. ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [June 15, 2011, 4:56pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/32 "2011-06-15T16:56:34Z")
> [@Bricker](#): > > A judge should recuse himself when he has a direct or personal stake in the outcome. But merely being a part of the general public is not sufficient to create that condition. A judge who rules against the government on a Fourth Amendment car search question cannot be challenged because he himself drives a car and thus may one day be subject to the same type of search at issue in the case. > > In this case, the objection is that Judge Walker may wish to marry someday. That’s true of any un married person. No grounds for his recusal here. Last I checked, Judge Walker was never prohibited from marrying. He was prohibited from marrying a man. I’d say that he directly benefits from the striking of Prop 8. It’s just an odd coincidence, no? If I were Walker, I’d feel a little strange ruling on a case like that - especially if I had been in a partnership for the last 10 years. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 15, 2011, 4:59pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/33 "2011-06-15T16:59:41Z")
> [@YogSosoth](#): > > Well then I’m not sure. I’ve been trying to follow the case but it’s dragged out so long I’ve forgotten many details. I hope that what you’re saying is true though, I’d love to have our liberal 9th Circuit set the precedent for the entire country to allow gay marriage. Letting states like Mississippi determine it for themselves might take them a while, as they only officially banned slavery in 1995 Easy peasy: if they were challenging Prop 8 based on California law, or the California Constitution, the case would be in a California court. Because they’re challenging it based on the US Constitution, it’s a federal question and belongs in federal court. [QUOTE=CitizenPained] Last I checked, Judge Walker was never prohibited from marrying. He was prohibited from marrying a man. I’d say that he directly benefits from the striking of Prop 8. It’s just an odd coincidence, no? If I were Walker, I’d feel a little strange ruling on a case like that - especially if I had been in a partnership for the last 10 years. [/QUOTE] He only directly benefits if he actually wants to get married. We don’t know whether that’s the case - especially since lots of gays think that gay marriage forces heterosexual norms onto homosexual relationships. If Walker was black, would you have an issue with him ruling on the constitutionality of an race-based home mortgage program? He’d be in a position to directly benefit. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [June 15, 2011, 5:09pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/34 "2011-06-15T17:09:50Z")
It’s one thing to ask say a judge has a conflict of interest or a personal stake in a decision based on something he’s done. Asking a court to overturn a ruling based on the identity of the judge (gender, race, religion, sexual orientation) would be a troubling precedent. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [June 15, 2011, 5:22pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/35 "2011-06-15T17:22:33Z")
So if Walker upheld Prop 8 and it came out that he was heterosexual, then obviously his “straightness” creates a conflict of interest - right? 😛 ---
**Author:** ![Patty\_O\_Furniture](https://avatars.discourse-cdn.com/v4/letter/p/96bed5/32.png) [@Patty\_O\_Furniture](https://boards.straightdope.com/u/Patty_O_Furniture)\ **Post date:** [June 15, 2011, 5:24pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/36 "2011-06-15T17:24:05Z")
> [@CitizenPained](#): > > And women are _half_ of the electorate, whereas gay men are like 2-3 per cent. 2-3%? Did anyone check the closets? ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [June 15, 2011, 5:37pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/37 "2011-06-15T17:37:23Z")
> [@Really\_Not\_All\_That\_Bright](#): > > He only directly benefits if he actually wants to get married. We don’t know whether that’s the case - especially since lots of gays think that gay marriage forces heterosexual norms onto homosexual relationships. He’d arguably indirectly benefit as it would ‘legitimize’ his 10 year relationship. (I put that in quote marks on purpose.) I can’t imagine he wouldn’t take advantage of California law regarding same sex couples. > [@](#): > > If Walker was black, would you have an issue with him ruling on the constitutionality of an race-based home mortgage program? He’d be in a position to directly benefit. Only if the program catered to low income blacks and Walker was one of them and known to support such programs. But this is not the same thing. Likewise, people have advocated for a diversified Supreme Court on the grounds that an all-white privileged male SCOTUS couldn’t effectively rule. :dubious: People have long since made cases about a judge’s background (or President’s, or legislator’s, or whatever) and potential influences. If a judge ruling on a polygamy case were a polygamous Mormon, there would be cries of foul play. How could any party expect a fair and impartial ruling based on law if the very person they are arguing to already disagrees with them? The fact that Walker has been in a 10 year relationship means he disagrees with Pop 8’s premise. > [@Patty\_O\_Furniture](#): > > 2-3%? Did anyone check the closets? I was just going off of widely published data. ---
**Author:** ![Bosstone](https://avatars.discourse-cdn.com/v4/letter/b/22d042/32.png) [@Bosstone](https://boards.straightdope.com/u/Bosstone)\ **Post date:** [June 15, 2011, 5:40pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/38 "2011-06-15T17:40:07Z")
> [@Saint\_Cad](#): > > So if Walker upheld Prop 8 and it came out that he was heterosexual, then obviously his “straightness” creates a conflict of interest - right? 😛 Certainly not, because straights don’t benefit from Prop 8. (Hey, it makes about as much sense as the ‘the word marriage is important to us/it’s just a word, why are you so worked up about it?’ argument.) ---
**Author:** ![paperbackwriter](https://avatars.discourse-cdn.com/v4/letter/p/53a042/32.png) [@paperbackwriter](https://boards.straightdope.com/u/paperbackwriter)\ **Post date:** [June 15, 2011, 6:05pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/39 "2011-06-15T18:05:37Z")
> [@John\_Mace](#): > > It has indeed been a long and torturous path, and for that reason I am not 100% certain, but I’m reasonable sure I’m right. Although USSC decisions affect the nation as a whole, the effect of them overturning or upholding a particular decision may not actually create a precedent. For example, if the USSC refuses to hear a case (i.e., does not grant certoriari), that will uphold a lower court decision but create no precedent. In the case of Prop 8, upholding Walker’s decision may also not create a nationwide precedent legalizing gay marriage. What Judge Walker’s opinion actually decided was that Prop. 8 was not legally passed because it had no rational government interest in discriminating between opposite-sex and same-sex couples. On appeal, the biggest question has been the standing of the defendant intervenor (the proposition proponents). If the 9th Circuit and the USSC decide the case on that question, then it will set no precedent about the legality of same-sex marriage, _even though_ same-sex marriage would then be legal in California. The standing issue is treated as a foundational issue: If you don’t have standing to bring a case, then, whatever the merits of your argument may be, the case shouldn’t exist and you lose. An important case on standing is, for example, [Lujan v. Defenders of Wildlife](http://en.wikipedia.org/wiki/Lujan_v._Defenders_of_Wildlife). Because the USSC ruled against the Defenders of WIldlife group on a standing issue, it never addressed their complaints about regulations affecting the Endangered Species Act. So while the regulations were “upheld,” their constitutionality was never ruled on. The same could very well happen in Perry v. Schwarzenegger. If the 9th circuit rules against the Prop 8 opponents on standing (which appears likely) and if they appeal (which is almost certain), and if the USSC accepts the case (which is anybody’s guess), then the standing issue is the first one the USSC will address. Only if they decide to grant standing will they rule on the merits of the discrimination complaint. Only if that happens would it set a nationwide precedent about the substantive issue of the constitutionality of Prop 8. Even then, the constitutional precedent may be limited in application. The USSC may decide that, for example, Prop 8 advanced no legitimate government interest. That does not mean that all anti-gay-marriage statutes fail for the same reason. As mentioned above, the CA proponents did a truly pathetic job of defending a proposed government interest, but it is conceivable that some legislators in another state would do a better job of identifying and defending a legitimate government interest that would justify an anti-gay-marriage law. Bottom line: You can’t say that a USSC decision that has the effect of striking down Prop 8 automatically sets a nationwide precedent legalizing gay marriage. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 15, 2011, 7:45pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/40 "2011-06-15T19:45:34Z")
I’m aware of the standing issue and how that works. But why would the court only overturn Prop 8 for CA? It would open the floodgates for the laws (or constitutional amendments) of each state to be brought individually to the SCOTUS to be decided, and there is no way the court is going to all a ban on SSM in some states and disallow that ban in other states. What a legal mess that would create. [Previous page](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500.md?page=1) [Next page](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500.md?page=3)