The Prop 8 Paparazzi

Following tweets and transcripts of this morning’s hearing in the Prop 8 case, I started to feel like I was reading a celebrity magazine written by lawyers.

The issue at stake in the hearing was whether now-retired Judge Vaughn Walker, who overturned Prop 8’s ban on gay marriage last year, should have recused himself from the marriage equality case because he himself is gay. Judge Walker’s sexual orientation was widely known at the time of the decision, and certainly didn’t escape the notice of right-wing critics of marriage equality, but lawyers defending Prop 8 decided not to bring it up at the time.

Then, after Walker handed down a powerful ruling against the anti-gay measure, they changed their minds. Perhaps sensing that they couldn’t argue that Judge Walker was disqualified from the case simply because he is gay, Prop 8’s backers instead decided to argue that the judge should have recused himself because he was in a long-term relationship and may someday have wanted to get married, thus benefiting from his own ruling.

This meant that the Prop 8 attorneys first had to somehow prove that Judge Walker intended to marry his partner of many years, and then demonstrate that if he did intend to get married himself he shouldn’t have judged the case. Since Walker hadn’t granted them a tell-all interview, the task of proving that the judge intended to get married became a game of speculation and assumption, and led to exchanges like this one, roughly transcribed with comments by Courage Campaign (W is the judge, James Ware and C is Charles Cooper, the attorney defending Prop 8):

W: What is fact you rely upon that judge walker was in a relationship for purposes of marriage?

C: The fact that he has publicly announced that he is and has been in a relationship with another person?

W: So if you are in a ten year relationship with another person, that is for purposes of marriage?

(laughter—this Cooper is so silly. He should do a Mennen deodorant ad, though. I think he’s still dry.)

C: Blah

W: You would concede that you could be in a long term relationship without being in it for purposes of marriage?

C: Yes.

W: What distinguishes it?

C: Very fact that two individuals are in kind of relationship Walker has…

W: What distinguishes between two?

C: There are platonic friendships that do not lead to marriage. [laughter]

W: What do you mean platonic?

C: Non-intimate, non-sexual. Clear understanding of media reports…

W: You are saying that length of relationship alone converts to marriage relationship?

C: Yes. Bespeaks commitment. All of these have been used interchangeably. Take pains to say they are in long term relationships.

W: Their relief was not to stay in long term relationship. Nothing threatened their long term relationship. Neither they nor Walker threatened. They sought to change relationship. What fact would cite to the court that Walker sought to change his relationship?

C: (Stumbles…) There are several points I would make that a reasonable person with knowledge that judge walker would be expected to have an interest in marrying his long time partner. (Thought police, please) Judge Walker similarly situated for purpose of marriage just as plaintiffs.

This is the kind of unsubstantiated speculation about a person’s love life that you’d expect from a celeb magazine profile of Jennifer Aniston, not a serious case in federal court. The basic logic of their argument not only makes no sense in the first place – since they argue that same-sex marriage hurts heterosexual marriage, it follows that heterosexual judges would have to recuse themselves as well (more on that here). But the fact that Prop 8’s proponents have resorted to baseless theorizing about the judge’s personal life truly underscores just how weak a case they have they have.

It is also telling that the “dirt” that Cooper has dug up about Walker isn’t exactly scandalous…in fact, his matter-of-fact assumption that two people in a long-term, committed relationship might want to get married can be seen as a strong argument in favor of letting them do just that.

For their part, the pro-equality camp argued that Judge Walker shouldn’t have had to recuse himself from the case, regardless of who he was planning or not planning to marry.

The judge has promised a decision soon, possibly within a day.

PFAW