Judge Ware -- the successor of the original, who retired -- heard the case this week and took only a day to issue a ruling. The ruling was based on these arguments.
Did Judge Walker make any financial gain from the case? No.
Would a reasonable person, knowing all facts, think the judge might be impartial? This got touchy. Ware is a black man married to a white woman. He has conducted same-sex weddings. But might Walker benefited from being allowed to marry?
Ware said even reasonable people have biases. But reasonable people tend to outgrow them. The plaintiff, Charles Cooper, claimed Walker's relationship disqualified him because he might want to get married. Ware responded that's not a fact and is not evidence. Cooper tried to say Walker should have disclosed his relationship. Ware said that a judge is assumed to be able to rule without bias -- that's his training after all -- and he shouldn't have to lay his personal history before the court in case something might be important. In the end it came down to the claim that gays can't be impartial.
Yes, a day later Ware issued his ruling. He denied the claim, which confirms Walker acted appropriately and the ruling stands. Ware said even if Walker did want to marry he is no different from anyone else and that is not grounds for recusing himself from the case.
Ware went on: In discrimination cases a member of a minority does not reap greater benefit from the removal of that discrimination than the society as a whole.
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. … To the extent that a law is adjudged violative, enjoining enforcement of that law is a public good that benefits all in our society equally.
Blogger Rob Tisinai paraphrases it this way (emphasis in the original):
Ware is voicing what made America so exceptional, so American, in the modern world: The belief that it’s better to be a equal citizen in a free nation than a king in a tyrannical land.
And yet, the GOP with corporate backers believe they are supposed to be the kings around here.
There was a second part of the hearing. Walker had shown videos of the trial. Cooper wanted all video copies collected up and destroyed (to hide evidence his side didn't have a case and looked rather stupid, even though the trial transcript is public record). That didn't get far. Ware responded by saying he personally gave the tapes to Walker during the ceremony when Walker passed the gavel to him. Cooper wisely shut up.
Law blogger Ari Ezra Waldman noted that Cooper has vowed to repeal Ware's decision. Walker thinks as a legal strategy that is pretty dumb. The 9th Circuit knew Walker and has already invested its own time in the case. Cooper won't get far there. In addition the Supremes rarely bother with such cases.
But Waldman thinks there is another strategy going on. Cooper's repeal will, of course, delay gay marriage in Calif. some more. Perhaps long enough that gay rights organizations will put the issue on the ballot again. Cooper thinks that his side won the ballot before, they can do it again. And judges, especially the Supremes, will be less likely to overturn a ruling confirmed by the voters twice.
While Waldman seems to endorse that scenario, lots of responders are sure enough has happened since last time that we won't lose the second vote.
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