Let's start with the two good news items, both related to the Constitutional right to equal protection under the law, and then the not-so-good news item, the one out of Wisconsin, where a predictable partisan divide succeeded in removing rights from American citizens...
California's Proposition 8
In response to a rather absurd argument by opponents of equal protection under the law in regard to marriage rights, a federal judge in San Francisco ruled that the judge who found California's Prop 8 to be unconstitutional did not need to recuse himself from the case simply because he was gay. Wouldn't, by the same argument, a straight judge have been similarly biased in favor of the law? Of course. The Chief U.S. District Judge found as much, noting that finding otherwise would also require "recusal of minority judges in most, if not all, civil rights cases."
A federal judge in San Francisco on Tuesday upheld retired Judge Vaughn R. Walker ruling on California's Proposition 8, after supporters of the measure accused Walker of being prejudiced in the case.
Sponsors of Proposition 8, California's 2008 ban on same sex marriage, argued that Walker should have been disqualified because he failed to disclose his 10-year relationship with a male partner. Attorney Charles Cooper alleged that Walker, who overturned the same sex marriage ban in January 2010, had a personal interest in the outcome of the case.
U.S. District Court Judge James Ware upheld Walker's ruling that Proposition 8 violated the Constitution's equal protection clause, noting there was no evidence that Walker should have recused himself from the Proposition 8 trial because he was in a same sex relationship.
The ruling was another win for constitutional conservatives such as Theodore Olsen, George W. Bush's Solicitor General, who joined with Al Gore's 2000 Presidential election attorney David Boise to argue a federal constitutional challenge to the state ballot initiative which, for the time being, has brought a halt to same-sex marriages in the Golden State.
Supporters of the ban on equal rights have appealed Walker's original verdict, which is likely to be heard soon by the U.S. Supreme Court
Federal "Defense of Marriage Act" (DOMA)
Another big win for supporters of equal protection under the law was seen in a federal court in San Francisco today, as the federal Defense of Marriage Act (DOMA) was again found to be unconstitutional, this time in an unusual and broad verdict as part of a bankruptcy case.
The same-sex couple challenging the law had been married in the state of California prior to the passage of Prop 8, after a conservative majority on the state Supreme Court had found the state constitution did not allow discrimination against gay couples. When they recently needed to file for federal bankruptcy protection, the federal government argued that DOMA, which requires that same sex marriages are not to be recognized under federal law, blocked the married couple from their right to file jointly.
19 of 24 judges in the Central District court took the opportunity to sign on to the ruling that DOMA unconstitutionally denied equal protection under the law to the couple.
In a rare and sweeping bankruptcy ruling, a federal bankruptcy judge backed by most of his colleagues in the Central District of California has held that the federal Defense of Marriage Act is unconstitutional.
Two legally married California men who filed a Chapter 13 petition to restructure and repay their debts should be allowed to file jointly and should be afforded the same bankruptcy rights as any other legally married couple, held Judge Thomas Donovan.
Eighteen of his 24 colleagues signed on to his opinion, as did one recently retired judge who sits by assignment.
[Judge Catherine] Bauer said it's not unusual for bankruptcy judges in the Central District to sign on to each other's opinions. "It saves a lot of money for folks if they know these judges sign onto this view of the law," she said.
But it is rare for so many judges to sign on to a single decision, said Samuel Bufford, a former Central District bankruptcy judge and now a scholar in residence at Penn State Law.