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U.S. Judge Refuses to Recuse Himself From California Gay Marriage Appeal

A judge on the federal appellate court in San Francisco refused to disqualify himself from hearing the appeal of a ruling that overturned Proposition 8, California’s ban on same-sex marriage.

U.S. Circuit Judge Stephen Reinhardt rejected the request in an order filed today in the case. Arguments before the three- judge panel are scheduled for Dec. 6, according to the docket.

A federal judge in August threw out Proposition 8, ruling that there was “overwhelming evidence” the law violated constitutional equal-protection rights. Proponents of the measure asked the U.S. Court of Appeals to overturn the ruling.

ProtectMarriage.com, a Proposition 8 supporter, filed a motion yesterday asking Reinhardt to disqualify himself because “his wife and the organization she leads,” the Southern California chapter of the American Civil Liberties Union, “have not only been active in seeking to redefine marriage in California and active in opposition to Proposition 8, but they have been active participants in this very lawsuit.”

Reinhardt, who was appointed to the court in 1980 by President Jimmy Carter, didn’t mention his wife, Ramona Ripston, in his written response today to the request for his disqualification.

“I am certain that a reasonable person with knowledge of all the facts would not conclude that my impartiality might reasonably be questioned,” Reinhardt wrote in his order. He said he would issue a more detailed written explanation later.

‘Friends and Family’

In the request for the judge’s recusal, ProtectMarriage.com said that Ripston signed a letter on behalf of her ACLU chapter urging the organization’s allies to “talk to close friends and family” about why the same-sex marriage court battle is important.

The anti-gay marriage group also said “it appears” the attorneys who brought the challenge to Proposition 8 “engaged in ‘confidential discussions’ with Ms. Ripston and ALCU/SC’s legal director before filing the lawsuit.”

While Ripston and her ACLU chapter weren’t parties to the litigation, “the focus has consistently been on the question ’whether the relationship between the judge and an interested party was such as to present a risk that the judge’s impartiality in the case at bar might reasonably be questioned by the public’ -- a risk that is manifestly present here,” ProtectMarriage.com said in its court filing.

Seven Prior Cases

Reinhardt cited seven prior cases dating back to 1997 in which he removed himself from any review of appeals. Each time, the ACLU of Southern California represented a party in the case. Ripston has been executive director of that chapter for 38 years, except for a period of about 18 months, and plans to retire in February, according to the ACLU’s website.

The cases included a dispute over a company’s participation in transporting suspected terrorists to foreign countries for questioning and alleged abuse; a challenge to the recall of former California Governor Gray Davis; and a fight over a ballot initiative banning most government affirmative-action programs.

Reinhardt, Ripston and the ACLU declined to comment today.

Federal law requires U.S. judges to decide themselves whether they must step down from a case due to a conflict of interest or a personal bias, according to Carl Tobias, law professor at the University of Richmond in Virginia.

Now that Reinhardt has refused to remove himself from the gay marriage case, proponents of Proposition 8 could raise the issue “once the merits of the case are decided,” Tobias said.

Larger Judges’ Panel

He said the losing side in the three-judge panel’s ruling will probably ask a larger panel of the appeals court to review the case, at which time Reinhardt’s decision not to disqualify himself could be challenged.

“ProtectMarriage.com accepts the judge’s decision, but stands behind the arguments in its motion,” Andrew Pugno, attorney for the group, said in an e-mailed statement. “We are confident that Proposition 8 and the institution of marriage will ultimately prevail.”

Gay marriage supporters praised Reinhardt’s action as appropriate in this case.

“If we recuse a judge every time a spouse gets involved in activities we’ll have a difficult time getting judges,” Therese Stewart, chief deputy city attorney for San Francisco, said in a phone interview. The city filed court briefs supporting same- sex marriage.

“What is really going on is the proponents don’t like the decisions by Judge Reinhardt in other cases,” Stewart said. “They fear his decision in this case and this is a mechanism to get him off the case.”

The two other members of the panel are N. Randy Smith, appointed to the court in 2007 by then-President George W. Bush, and Michael Daly Hawkins, appointed by Bill Clinton in 1994.

The case is Perry v. Schwarzenegger, 10-16696, U.S. Court of Appeals for the Ninth Circuit (San Francisco). The lower court case is Perry v. Schwarzenegger, 09-02292, U.S. District Court, Northern District of California (San Francisco).

To contact the reporter on this story: Pamela A. MacLean at pmaclean@pacbell.net.

To contact the editor responsible for this story: David E. Rovella at drovella@bloomberg.net.

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