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A key word that you will see:

Fragmentation: a mental process where a person becomes intensely emotionally focused on one aspect of themselves, such as “I am angry” or “no one loves me,” to the point where all thoughts, feelings and behavior demonstrate this emotional state, in which, the person does not or is unable to take into account the reality of their environment, others or themselves and their resources. This is a term that my therapist and I use and is on the continuum of dissociation.

Wednesday, June 15, 2011

Another Step Forward For GLBT Rights

Yesterday, in an historic and forceful decision, US District Court Chief Judge James S. Ware denied anti-marriage forces' motion to throw out the decision that ruled Prop. 8 unconstitutional.

He erased all doubt that the Prop. 8 trial was anything but fair and thorough and sent a powerful message that extreme fringe groups cannot strong-arm the law.
From the San Francisco Chronicle:
SAN FRANCISCO -- A federal judge refused Tuesday to set aside a former colleague's ruling overturning California's ban on same-sex marriage and said the jurist's long-term relationship with another man was not a legitimate reason to accuse him of bias.

"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 proceedings," Chief U.S. District Judge James Ware said in rejecting conflict-of-interest charges against his predecessor, Vaughn Walker.

Sponsors of Proposition 8, the November 2008 initiative barring gay and lesbian marriages, had asked Ware to nullify Walker's ruling in August against the measure and declare that he should not have heard the case.

They said his disclosure in April, six weeks after his retirement from the bench, of his 10-year same-sex relationship showed he had a stake in the outcome of the lawsuit challenging Prop. 8.

Although Walker has not said whether he and his partner intend to marry, Prop. 8's backers argued that his silence entitles the public to presume they were planning to wed when he presided over the trial in January 2010.

Ware, who heard arguments over Walker's role in San Francisco on Monday, disagreed. The fact that a judge is in a relationship, he said, doesn't necessarily mean he is "so interested in marrying the person that he would be unable to exhibit the impartiality which, it is presumed, all federal judges maintain."

A gay judge is entitled to rule in a gay-rights case, even if his decision could provide him "some speculative future benefit," Ware said.

He said disqualifying Walker because he is a member of a group potentially affected by his ruling would also require "recusal of minority judges in most, if not all, civil rights cases."

Besides, Ware said, the Prop. 8 case did not affect only a minority group.

"We all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right," he said.

The judge also rejected arguments that Walker had been legally obliged to disclose his relationship before the trial. Courts have required judges to reveal close ties to people with a financial interest in a case, or to a lawyer for one of the parties, Ware said. But Walker had no duty to disclose "intimate, but irrelevant, details about his personal life," he said.

Prop. 8's sponsors, a conservative religious coalition called Protect Marriage, said it disagreed with the ruling, without going into detail.

"Our legal team will appeal that decision and continue our tireless efforts to defend the will of the people of California to preserve marriage as the union of a man and a woman," said attorney Charles Cooper.

Walker ruled that Prop. 8 discriminates on the basis of sexual orientation and gender. The Ninth U.S. Circuit Court of Appeals in San Francisco has put the decision on hold while it considers an appeal from Protect Marriage, whose legal standing to argue the case is under review in the state Supreme Court.

Theodore Boutrous, a lawyer for two same-sex couples who challenged Prop. 8, said Ware's ruling "makes it clear that gay and lesbian judges are entitled to the same presumption of fairness and impartiality as all other federal judges."

E-mail Bob Egelko at begelko@sfchronicle.com.

Distict Court Denies Motion to Vacate Prop. 8 Ruling
June 14, 2011

Quotes of note:

“The sole fact that a federal judge shares the same circumstances or personal characteristics with, other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification under Section 455(b)(4). Further, under Section 455(a), 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 proceedings. Accordingly, the Motion to Vacate Judgment on the sole ground of Judge Walker’s same-sex relationship is DENIED.”

“The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself.”

“Further, such a standard “would come dangerously close to holding that minority judges must disqualify themselves from all major civil rights actions.” Alabama, 828 F.2d at 1542.”

“These cases lead the Court to adopt 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).”

“Requiring recusal because a court issued an injunction that could provide some speculative future benefit to the presiding judge solely on the basis of the fact that the judge belongs to the class against whom the unconstitutional law was directed would lead to a Section 455(b)(4) standard that required recusal of minority judges in most, if not all, civil rights cases.”

“The single characteristic that Judge Walker shares with the Plaintiffs, albeit one that might not have been shared with the majority of Californians, gave him no greater interest in a proper decision on the merits than would exist for any other judge or citizen.”

“[D]isqualifying Judge Walker based on an inference that he intended to take advantage of a future legal benefit made available by constitutional protections would result in an unworkable standard for disqualification. Under such a standard, disqualification would be based on assumptions about the amorphous personal feelings of judges in regards to such intimate and shifting matters as future desire to undergo an abortion, to send a child to a particular university or to engage in family planning. So too here, a test inquiring into the presiding judge’s desire to enter into the institution of marriage with a member of the same sex, now or in the future, would require reliance upon similarly elusive factors.”

“Thus, 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.”

“In this context, the “reasonable person” is not someone who is “hypersensitive or unduly suspicious,” but rather a “well-informed, thoughtful observer” who “understand[s] all the relevant facts” and “has examined the record and law.””

“A well-informed, thoughtful observer would recognize that the mere fact that a judge is in a relationship with another person–whether of the same 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…To assume otherwise is to engage in speculation about a judge’s motives and desires on the basis of an unsubstantiated
suspicion that the judge is personally biased or prejudiced. Mere speculation of that nature does not trigger the recusal requirements of Section 455(a).”

“In fact, the Court observes that Judge Walker, 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. Such a precedent would be detrimental to the integrity of the judiciary, because it would promote, incorrectly, disclosure by judges of highly personal information (e.g., information about a judge’s history of being sexually abused as a child), however irrelevant or time-consuming. Contrary to the intent of Section 455, which was designed to preserve judicial integrity through practices of transparency, it is clear that fostering the practice of commencing a judicial proceeding with an extensive exploration into the history and psyche of the presiding judge would produce the spurious appearance that irrelevant personal information could impact the judge’s decision-making, which would be harmful to the integrity of the courts.”


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