Judge Ware today released his decision regarding the Protect Marriage/Yes On 8 coalition's request that Judge Vaughan Walker's ruling that California's Prop 8 was unconstitutional on the grounds that Judge Walker's status as a member of a long-term same-sex relationship represented bias.

Judge Ware's ruling includes the statement that:

It is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceeding

He added, in his 21-page decision that

The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief

Moreover, according to Ware

The mere fact that a judge is in a relationship with another person—whether of the same sex or the opposite sex—does not ipso facto imply that the judge must be so interested in marrying that person that he would be unable to exhibit the impartiality which, it is presumed, all federal judges maintain.

By asserting that Judge Walker was biased because he was in a long-term same-sex relationship, the Prop 8 supporters fell into a logical fallacy; their assertion implies that a married heterosexual judge would be biased in divorce cases, for instances, or that a Catholic judge would be biased in presiding over divorce cases, or a childless judge in matters of custody. As an interesting coincidence, Judge Walker is Black, and in his questions to the two parties specifically addressed issues of race in civil rights cases. Both attorneys agreed that

Ware became involved in Prop 8 litigation after Judge Vaughan Walker retired last summer. Walker's decision regarding the unconstitutionality of Prop 8 is now on appeal, its fate dependent on determining if the supporters of Prop 8, which makes same-sex marriage in California illegal have a legal right to defend the voter-approved state law when the governor of California and the state attorney general both refuse to continue the appeal, on the grounds that the law is in fact unconstitutional.

Ultimately, Prop 8 supporters are left flailing their arms regarding the lack of legal support for their positon that same-sex marriage is prohibited by the nature of marriage, as the original brief documenting the reasons Judge Walker found Prop 8 unconstitutional notes. For additional coverage see the Los Angeles Times, and The New Civil Rights Movement blog.