Federal Judge Walker to Retire; Prop. 8 Proponents Hopeful

( [email protected] ) Oct 05, 2010 02:32 PM EDT

Afters 21 years as a federal judge, Chief U.S. District Judge Vaughn Walker has announced his intention to retire from the U.S. District Court of Northern California next February, giving new hope to those who continue to rally the state to restore the traditional definition of marriage.

Just two months earlier, Walker ruled against the constitutionality of Proposition 8, California’s voter-approved marriage amendment, calling proponents of the one-man-one-woman marriage definition “irrational.” He later denied requests for a permanent stay of his decision to allow same-sex couples to wed pending the appeals process.

Now, traditional marriage proponents say Walker’s departure may bode well for the Prop. 8 appeal currently making its way through the Ninth U.S. Circuit Court of Appeals.

“This is a significant development in the Prop. 8 case, which is likely to be eventually sent back down to the district court after the Ninth Circuit and Supreme Court consider it,” said Brad Dacus, president of Pacific Justice Institute. Dacus said the appeal may be sent back based on the defendants’ ability to prove a rational basis for the California marriage amendment.

Liberty Counsel Chairman and Founder Mathew Staver similarly said the appeal has a 50/50 chance of returning to the district court due to a number of procedural reasons.

“The Ninth court can send it back for lack of standing,” Staver commented.

And according to PJI Chief Counsel Kevin Snider, legal standing is a key concern that may keep proponents from defending the constitutional amendment.

In a recent order, the trial court indicated that the only defendants that have standing to appeal are California’s governor and attorney general, who initially declined to defend the state against the lawsuit of two same-sex couples. The case, Perry v. Schwarzenegger, was subsequently taken up by supporters of Prop. 8.

Walker has since denied intervention from Imperial County and ProtectMarriage.com, while allowing the city and county of San Francisco to intervene.

“That will be the first issue that the Ninth Circuit will take up in December,” Snider said in his legal group’s official blog.

Though, at this point, it is impossible to say for sure whether the proposition will be sent back, if it is, Dacus said it will likely be sent back to the district court after Walker has left. That, Dacus added, is a cause for hope.

“The judge’s resignation is a victory because there will be a different judge hearing the case,” he noted.

Like Dacus, Staver believes the amendment would be in better hands with anyone except Walker.

“Any trial court judge that hears this amendment will be fairer than Judge Walker,” said the Florida legal expert, who called Walker’s decisions to publicize the trial and expedite its ruling “unfair.”

Still, there is no telling what the outcome will be for the amendment.

“There is no assurance to [the new judge’s] beliefs,” Dacus said.

Notably, some have already questioned the background of District Judge James S. Ware of San Jose, who will succeed Walker in the post, which is determined by seniority.

Ware was scandalized for having lied about being the brother of Virgil Ware, a black boy who was gunned down in Alabama during the 1960s. Once the story was found to be untrue, Ware was reprimanded but allowed to retain his lifetime appointment as district judge.

Despite the incident, legal experts say the past will have no bearing on the appeal.

“I see no reason why Ware would have to recuse himself,” Dacus said.

Walker will relinquish his title of chief judge effective Dec. 31, a month before his retirement. The next Prop. 8 hearing is set to begin Dec. 6.