Prop. 8 judge refuses to step down from hearing appeal

A liberal judge who has been assigned to consider the constitutionality of California's ban on same-sex marriage today turned down a request by the measure's sponsors that he disqualify himself.

Judge Stephen Reinhardt of the 9th U.S. Circuit Court of Appeals said in a brief order filed this morning, “I will be able to rule impartially on this appeal and I will do so.”

Reinhardt, one of the most liberal members of the appeals court, is one of three 9th Circuit judges who are scheduled to hear arguments in San Francisco Monday on Proposition 8, the voter-approved ban on same-sex marriage.

The sponsors of the measure and their committee, Protect Marriage, late Wednesday asked Reinhardt to step down from the case on the ground that his impartiality might be questioned.

They said Reinhardt might appear to be partial because his wife, Ramona Ripston, is the executive director of the American Civil Liberties Union of Southern California. Ripston announced earlier this year that she will retire from that post on Feb. 15.

The ACLU has issued statements supporting same-sex marriage and filed a friend-of-the-court brief in trial court proceedings in the case now before the appeals court. It has not filed a brief in the appeals court.

The sponsors of Proposition 8 are appealing a decision in which U.S. District Judge Vaughn Walker of San Francisco struck down the measure in August. Walker ruled that the 2008 voter initiative violated the federal constitutional guarantees of due process and equal treatment.

Appeals court spokesman David Madden said the Proposition 8 sponsors can ask Reinhardt to reconsider his refusal to disqualify himself, but have no other immediate way to appeal his order.

Andrew Pugno, attorney for the Proposition 8 sponsors, said the group “accepts the judge's decision, but stands behind the arguments in its motion.

“Our legal team is focused on the merits of our constitutional defense of Proposition 8. We are confident that Proposition 8 and the institution of marriage will ultimately prevail,” Pugno said.

The Proposition 8 sponsors filed their motion for disqualification under the terms of a federal law that requires a judge to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

Reinhardt wrote in this morning's order, “I am certain that a reasonable person with knowledge of all the facts would not conclude that my impartiality might reasonably be questioned.”

The judge said he would explain his reasons in a forthcoming memorandum “to be filed in due course.”
     

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