Court Says Recusal Not Required in Same-Sex Marriage Case

July 11, 2011

The U.S. District Court for the Northern District of California recently issued its decision rejecting a motion to vacate the the court’s judgment that California’s “Proposition 8” ban on same-sex marriage is unconstitutional.  The motion to vacate asserted as grounds that the the presiding judge should have recused himself from the case, based on his disclosure after his retirement from the bench that he is homosexual and has been in a same-sex relationship for the last 10 years. 

Specifically, it was alleged that this long-term relationship gave rise to some form of non-pecuniary interest or inference of impartiality requiring recusal or disqualification.  This seems to be a novel issue in the jurisprudence of recusal, and the court offered some interesting language in its decision.  (You can see the full text on Westlaw at 2011 WL 2321440.)

After a review of existing case law under FRCP 455(b)(4)*, the court “adopt[ed] the following legal conclusion: In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristic and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge under Section 455(b)(4).

The court emphasized that it is a mistake to say that a member of a minority has a greater interest in safeguarding civil rights than the majority: “In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right.”

The court also found that a possible future interest in marrying is too tenuous or indeterminate to require recusal under the statute: “… to base a recusal standard on future subjective intent to take advantage of constitutional rights is to create an inadministrable test, frustrating congressional efforts to protect judicial integrity with a clear, mandatory recusal statute.”

Responding to the movants’ suggestion that the judge’s prior non-disclosure might lead that infamous reasonable person to question his impartiality, which would require recusal under FRCP 455(a), the court observes, “… silence is by its very nature ambiguous, and thus is open to multiple interpretations. Another, and equally reasonable, way to interpret that silence is suggested by Ninth Circuit caselaw, which holds that it is to be presumed that any judge is impartial.”  The court goes on to say, “Beginning from the presumption that judges are impartial, the Court postulates that a judge who is silent in such a situation has already, sua sponte, considered the question of recusal and has determined that he need not disqualify himself, because no reasonable observer would conclude that his impartiality could reasonably be questioned.”

Later, the court goes to far as to observe that the judge in this case, “like all judges, had a duty to preserve the integrity of the judiciary. Among other things, this means that if, in an overabundance of caution, he were to have disclosed intimate, but irrelevant, details about his personal life that were not reasonably related to the question of disqualification, he could have set a pernicious precedent.”  (One can only imagine what personal details of his or her life a judge might be contemplating when reading these words.)

Already notice of appeal has been filed, while the appeal of the underlying decision on Proposition 8 is still pending.  Certainly we have not heard the last of this issue.

* Our search for 455(b)(4) in the FED9-ALL database, yields 35 cases.