Retired Honorable Vaughn R. Walker, former chief judge of the United States District Court for the Northern District of California, came out publicly about being a gay man, mentioning his Physician partner of 10 years.

During the Prop 8 trial , Right Wing commentators, anti- same-sex marriage supporters tenaciously rumbled about  the fact that former U.S. District Judge Vaughn Walker is gay.  Now the Judge is speaking out for the first time  about how his sexuality relates to his work and  to state it simply – it does not!   Judge Walker’s comments were his first  since the historic and minefield of a case case was filed.

While some wondered whether the Republican nominated Judge’s sexual orientation would affect his decision making on the topic of Gay / same-sex Marriage in California, others believed such was a non issue and served only as a tactic to discredit the judicially astute Judge.

The U.S. judge who struck down California’s gay marriage ban never considered his own homosexuality as a reason to recuse himself from the case, he said on Wednesday.   Walker eventually struck down Prop 8 as unconstitutional, and the case is currently on appeal. Walker retired at the end of February, and he talked with a handful of reporters about issues like the Prop 8 case, cameras in the court, and his once-strained relationship with San Francisco’s gay community. (Reports Reuters)

It would not be appropriate for any judge’s sexual orientation, ethnicity, national origin or gender to stop them from presiding over a case, he said. “That’s a very slippery slope,” Walker said.

Walker had never previously discussed his sexual orientation in the press, but on Wednesday said he was in a 10-year relationship with a physician.

A Midwesterner, Walker was born in 1944 in Watseka, Illinois, about 90 miles south of Chicago. He worked for years at one of San Francisco’s top law firms before being nominated to the federal bench in 1989 by George H.W. Bush.  Seated at a table in a charcoal suit with a white handkerchief, Walker remembered how the gay community had once vilified his nomination to the federal bench.

Walker has opened a law practice focusing on dispute management and resolution. This includes alternative dispute resolution (ADR) as well as counseling clients with respect to litigation risks, especially in protracted and complex litigation.

“The awareness of the complexities and increasingly multi-national character of legal disputes has prompted me to focus the next phase of my career on helping parties strike a path to practical management of these issues and resolutions” (Business Wire)

In his 21 years on the federal bench, Judge Walker presided over an estimated 8,000 cases, more than 250 jury and bench trials, numerous settlement conferences and sat by designation on the U.S. Courts of Appeals for the Ninth Circuit and the Federal Circuit. He was a member of the Judicial Conference of the United States Committee on Civil Rules, which promulgates procedural rules for the federal courts. Walker performed judicial training and education in many foreign countries under the auspices of the United Nations Conference on Trade and Development and the U.S. Department of State.

Walker was known for his handling of complex, high-profile cases, in the fields of antitrust, copyright and patent law and in cases involving disputes over securities fraud, terrorist surveillance and same-sex marriage

Meg Whitman’s inarticulate Prop 8 response:  - “The issue right now is, as I understand is ‘Will Proposition 8 have the appropriate support to actually make an appeal to the circuit court of appeals? And I think the governor, the attorney general today has to defend the constitution and has to enable the judicial process to go along and has to enable an appeal to go through.  So if I was governor, I would give that ruling standing to be able to appeal to the circuit court;” emphasizes her lack of qualification for Governor, as she clearly has no grasp whatsoever on the law and how it works.

However she is danger personified and as a team with Cooley for Attorney General, potentially lethal to the California quest for marriage equality and the final demise of Prop 8.

While current California Governor Schwarzenegger and AG  Jerry Brown (running as Whitman’s Gubernatorial opponent) have decided not to appeal on the state’s behalf, if  Whitman wins could she make serious waves and  actually impact Prop 8.

Lambda Legal’s Legal Director Jon Davidson, suggests that if Whitman is  elected- she is only sworn in on January 3, a month after the December 6 hearing.  However he points out that the Whitman and Cooley camps can always figure out some legal maneuvers to impact the federal Prop 8 case.

Davidson’s analysis:

“At the time of the oral argument that has been scheduled for the week of December 6th, even were Whitman or Cooley to have won the election, they will not have taken office – the new officeholders don’t take office until Jan. 3. 2011.

In addition, at that point, the time to file an appeal from Judge Walker’s ruling will have long passed.  So, even were they to win, they would not be able to appeal Judge Walker’s ruling if Schwarzenegger and Brown do not – and they have indicated they will not.  In addition, Whitman and Cooley would not be able to participate in the oral arguments as parties.

They might seek to file amicus (friend-of-the-court briefs).  The deadline for filing such briefs is 7 days after the brief is due from the party you are supporting.  Amicus briefs in support of the proponents of Prop. 8 are due September 24th.

It would be unusual for a candidate for political office to file an amicus brief on a measure that they might be in more of a position to weigh in on were they elected, though I guess it could happen.

If they get elected, Whitman and/or Cooley might also seek to file an amicus brief after their election or after they are sworn in, which would be after the oral argument.  They would need to seek permission to file late.  There is no way of knowing whether the Ninth Circuit judges hearing the case would grant such a request to file late.

Once the 3-judge panel of the Ninth Circuit issues its decision, a party may ask that the case be reheard by the original 3-judge panel or, in the alternative that it be heard ‘en banc’ by a group of 11 randomly-assigned judges out of the 27 judges on the Ninth Circuit. I believe the presiding judge on the Ninth Circuit — Judge Alex Kosinzki — would be on the en banc panel regardless, if en banc hearing is granted.

After that, there is a very rarely procedure where someone could ask for a hearing by all 27 judges on the Ninth Circuit.  If no petition for rehearing and/or rehearing en banc is made, or if it’s made and denied, or if it’s granted, after it’s decided, then a party can ask the Supreme Court to hear the case.

If the Prop 8 proponents are denied standing and there has been no other appeal, they could at least appeal the denial of standing.  If the Ninth Circuit denied standing but went on to reach the merits of the case against them, the Prop 8 proponents would presumably try to brief the merits as well as part of their standing appeal.

So all said and done; the LGBT community must fight for Jerry Brown and Kamala Harris to the offices of  Governor and Attorney General respectively.

by Melanie Nathan
@oblogdeeoblogda
nathan@provatecourts.com

Picture: Prop 8 Plaintiffs

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Melanie Nathan,  August 12, 2010

Here is  the National Center for Lesbian Rights Analysis of Today’s ruling.

Does Judge Walker’s ruling today mean that same-sex couples in California will be able to marry starting August 18, 2010?

Not necessarily. Judge Walker ruled that there is no legal reason to delay letting same-sex couples marry; however, he kept the stay on his ruling in place until August 18. That extra time will allow the Ninth Circuit Court of Appeals to decide whether to let same-sex couples in California marry while the appeal proceeds, or whether to continue the stay until the Ninth Circuit reviews Judge Walker’s decision that Prop 8 is unconstitutional.

In practice, this means that the proponents of Prop 8 have a chance to file a motion for stay with the Ninth Circuit, and the Ninth Circuit has a chance to grant or deny that motion, but it must do so by August 18. If it does not, marriages will automatically start again at that time.

Does the Ninth Circuit have the final say over whether to stay Judge Walker’s ruling?

No. If the Ninth Circuit denies a stay, the proponents of Prop 8 can ask the United States Supreme Court to issue a stay. That request would be directed to Justice Anthony Kennedy, because he is the justice designated to hear requests for stays in the Ninth Circuit. If Justice Kennedy denied the motion to stay, the proponents of Prop 8 could ask the entire court to rule on that issue. Remember, this is not about whether Prop 8 is unconstitutional, but only about whether couples can marry based on Judge Walker’s ruling while the case is being appealed.

If same-sex couples in California can begin to marry again starting on August 18, will those marriages be valid if Judge Walker’s ruling is later overturned on appeal?

We strongly believe that marriages based on Judge Walker’s decision should be valid, even if the decision is later overturned on appeal. In his decision today, Judge Walker also supported that position, stating, “The court has the authority to enjoin defendants from enforcing Proposition 8. It appears, then, that marriages performed pursuant to a valid injunction would be lawful, much like the 18,000 marriages performed before the passage of Proposition 8 in November 2008. See Strauss v Horton, 46 Cal 4th 364, 472 (2009) (holding that married couples’ rights vest upon a lawful marriage).”

That said, to be safe, we strongly encourage same-sex couples in California who marry based on Judge Walker’s decision to also register as domestic partners to ensure that you are protected in the event your marriage is ever challenged. California law permits a couple both to marry and register as domestic partners, so long as it is with the same person. Also, you do not have to be a California resident to marry in California or to register as domestic partners.

What if the Ninth Circuit stays Judge Walker’s decision?

If the Ninth Circuit stays the decision, then same-sex couples in California will not be able to marry until the case is resolved on appeal.

Why is the ruling today important?

Even though Judge Walker did not immediately let same-sex couples in California marry, the ruling provides important insight into the merits of the issues that the Ninth Circuit will consider on appeal. For example, in his ruling today, Judge Walker casts serious doubt on whether the proponents of Prop 8 even have “standing” to pursue an appeal because they do not speak for the state of California, and the official representatives of the state agree that Prop 8 is unconstitutional. Standing refers to whether a particular person has a legal right to bring an appeal. In his ruling today, Judge Walker said: “As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal.”

What would happen if the proponents of Prop 8 do not have standing to appeal?

That would mean that Judge Walker’s decision would go into effect and could not be appealed. Same-sex couples in California would once again be able to marry, and Prop 8 would be permanently struck down.

Who gets to decide whether the proponents of Prop 8 have standing to appeal?

The Ninth Circuit will have the first chance to rule on that issue. No matter which way the Ninth Circuit rules, either side could appeal that decision to the United States Supreme Court. The Supreme Court can then choose whether to rule on the issue or let the Ninth Circuit’s decision stand.

Written by National Center for Lesbian Rights

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 Time.com reports a bombshell and a big kick in the side for the Obama Administration.  A little hole in DOMA which may lead to a blow out for the iniquitous law:

Chief Judge Alex Kozinski of the Ninth Circuit of the U.S. Court of Appeal issued an unusual and exceedingly profound challenge to the power of the Executive Branch, by doing something not even the most sweeping state-court constitutional decisions on gay marriage have been  able to do: put the issue of equal treatment for gays to President Barack Obama in a way he will find hard to ignore.  

 ”The Office of Personnel Management shall cease at once its interference with the jurisdiction of this tribunal. “  He gave the Obama Administration 30 days to permit Karen Golinski, a lawyer employed by the Ninth Circuit, to include the woman she married under California law last year on her family health-insurance plan. “Some branch must have the final say on a law’s meaning. At least as to laws governing judicial employees, that is entirely our duty and our province. We would not be a co-equal branch of government otherwise.”

Will President Obama defend the actions of the FEDS and refer to the Defense of Marriage Act, a policy that Obama has consistently said that he is against (even though the Obama Administration has defended the law on several occasions since his taking office), and run the risk of Judge Kuzinski taking further legal action?  Or, will they concede that the Office of Personnel Management overstepped its bounds by interfering with the judicial branch, and flirt with conceding too that DOMA itself is overreaching and infringes not just on this one Court’s ability to make rulings independently, but a state’s right to autonomy, and, as part of that, its right to define marriage by its own constitution as expressly stated as part of the Defense of Marriage Act?

The unusual order is only incidentally about gay rights — the judge sidestepped the constitutional question about gays entirely — and is instead a fiery defense of the rights of the judiciary to manage its own employees. But if the Administration chooses to fight the order, it will have to tread carefully to avoid looking to gay-rights advocates like it is waging war in defense of a statute — the Defense of Marriage Act (DOMA) — that candidate Obama had said should be overturned.

“Kozinski’s order comes at an interesting time in the Ninth Circuit. It was matched last week by an order by a fellow judge on the appeals court, who ruled that Brad Levenson, a public defender working for the federal courts, was entitled to back pay to cover costs associated with buying separate insurance policies he purchased for Tony Sears, whom he married under California law before last year’s Prop 8 made gay marriage illegal there. That state constitutional amendment will itself be on trial beginning in January, when a U.S. district judge in San Francisco will hold the first federal jury trial on whether the U.S. Constitution requires that gay couples be given the opportunity to be married. As chief judge of the circuit, Kozinski will then almost certainly hear the Prop 8 case when it goes on appeal.”

Read more: http://www.time.com/time/nation/article/0,8599,1942791-1,00.html#ixzz0Y76ZmcT3

So I say if you believe you are entitled Fill in that Form and help put another nail in the coffin signaling the DEMISE OF DOMA.  By the way keep your eye on this one.

Blogged by Melanie Nathan, nathan@privatecourts.com