Brody's Notes... Federal Court Rules On Consolidation Of Prop 8 Case & Challenge To Judge Walker's Impartiality Based On His Sexual Orientation

By Brody Levesque | SAN FRANCISCO, CALIFORNIA -- In a one sentence ruling issued Monday, the U. S. Ninth Circuit Court of Appeals granted a request from the legal team representing the anti-gay coalition of sponsors of Proposition 8, to consolidate the appeal of former Chief U. S. Judge Vaughn Walker's August 4, 2010, decision striking down the ballot initiative as unconstitutional along with the appeal of U.S. District Court Judge James Ware's ruling denying the attempt to have Walker's ruling vacated, arguing that Walker was biased because he is gay and has a partner.

By making this decision, the appellate court has set the stage for deciding all pertinent questions regarding the legal validity and merits of the constitutionality of Proposition 8 clearing the way for an unencumbered appeal to the U. S. Supreme Court which is a likely outcome according to legal analysts.

In appeal filed last month by Prop 8 Proponents, the Ninth Circuit was asked to reverse U.S. District Court Judge James Ware's June 14th ruling that rejected a move to vacate Walker's Aug. 4, 2010, decision, the proponents arguing that Judge Walker was biased and was in a 'gay' relationship.

This challenge was met by a coalition of groups advocating for lesbian, gay, bisexual, and transgender equality who had filed a friend-of-the-court brief urging the U.S. Ninth Circuit Court of Appeals to uphold Ware's decision.

In a unanimous ruling this past Thursday, the California Supreme Court said that Proposition 8 sponsors have the legal right to defend the state’s ban on same sex marriage. The federal court had triggered the state High Court’s intervention earlier this year, by asking the California Supreme Court to decide whether sponsors of the state ballot measures such as Proposition 8 have legal “standing” under California law to defend those laws when top state officials abandon a case. With that issue unresolved, the 9th Circuit had put on hold its review of Walker’s ruling.

The court has yet to resolve that issue in terms of 'standing' on a federal level although it has ordered an additional briefings on the matter due by December 2nd. Kate Kendall, the Executive Director of the National Center for Lesbian Rights, stated that the appellate court will likely to find the proponents have federal standing in light of the state court's opinion.

In a related matter, the federal court will hear arguments on the appeal to an earlier decision that video & audio recordings from the original trail conducted by Judge Walker can be released to the public and media organisations. The hearing is scheduled for 2:30 in the afternoon, (Pacific)on December 8.

Read the ruling here: [pdf]