A definite "conflict of interest". He should have recused himself. Good analysis in the attached article.

Dn. Robert

http://www.onenewsnow.com/Legal/Default.aspx?id=1113432

Don't go there. Would you want every Catholic judge to recuse himself from matters affecting abortion, contraception, and even marriage? A judge should rule on the law, and not allow his personal feelings to interfere. A gay judge should rule based on the law, not on his own sexual preferences. A Catholic judge should rule on the law, not on the basis of Catholic doctrine. If either is incapable of doing that, then he should not only recuse himself from a particular case, he should resign from the bench.

Which, I admit, would cause quite a number of openings in the judiciary.

There was a reason the early Church thought holding public office was incompatible with Christian life, and banned magistrates from the Chalice for their term of office.

You raise a point worth pondering. Of course, if Justice Scalia had unilaterally knocked down a law allowing partial birth abortion, there would be a hue and cry that he should have recused himself. However, the subject judge did not even rule in a way that is consistent with the U.S. Constitution. Article X is quite clear as to what functions belong to Fedgov (i.e., Post Office, the military, foreign policy, coin & currency, etc.). All else is left to the States and the people. Marriage law in the U.S. has always been the purview of State and Local legislation. Unless a Constitutional amendment is passed which deals with marriage, the Federal Government has no authority whatsoever in the area (of course, about 99.9% of the functions currently performed by Fedgov are "out of whack" with Article X, and are, thereby, unconstitutional-at least the writers of the Federalist papers-Founding Fathers-would see it that way. Modern interpretations have gone out of the way to dismiss or ignore the "original intent" of the Founders, and choose to interpret the Constitution as a "living" document-in other words, whatever I rule is the law). The appeal process in this case is worth watching.

Dn. Robert

I might not be popular for this. But any judge no matter who or she is should not judge a case unless they can judge it fairly and without bias. Now this does not mean they should not take their faith and life experiences into account in their decisions. It only means that they should not be the ONLY thing they make decisions on.
Protection of life, marriage, immigration, discrimination are not exclusively one faith or another. These things are morally found in the Constitution. The only reason we have Divorce, gay rights, special rights etc is because those on the courts have followed what they personally feel should be the law and not what it truly should be if the Constitution were followed. After all the Constitution respects Gods Laws and is based upon them.

Um, Kathleen, you are correct that no judge should take a case unless he can decide it on the merits of the law, but most of the rest of what you said is either wholly or partially incorrect.

Given that the judge in question spoke out about Prop 8 before it passed... at least according to NPR... he should have recused himself. He's also stated his desire to marry his homosexual partner.

He's also done another "No-No"... one the 9th Circuit has reversed quite a few decisions they'd otherwise support on... attempted to divine what motivated the people to vote the way they did, and used that in his findings.

In short, he's set up the perfect appealable ruling... conflict of interest, direct personal benefit from his ruling, improper basis for his decision, not in line with Article X, and evidence of pre-case bias against the law in question.

I expect the ruling will be overturned, either by the 9th Circuit or the Supreme Court. The short term issue is whether he will allow California to grant same sex marriages while the appeals process is ongoing. The State Attorney General has filed a motion for him to do just that. As the appeal would take a year or even two to wend its way through the judiciary system, this sets up the argument that the matter is "settled law" and would be too disruptive to overturn.

Stuart is right about how a judge should rule on a case.

I would also remind you folks that the judge in question was a conservative Republican appointed by Bush Senior. I like him becausae he is "unorthodox" and "independently minded."

In fact, his nomination stalled in the Senate because the Democrats in Congress opposed his appointment because they thought he was anti-gay!!!!!! Wikkipedia notes:

"Walker was born in Watseka, Illinois, in 1944. He graduated from the University of Michigan (1966) and Stanford Law School (1970).[1]

After clerking for United States District Court for the Central District of California Judge Robert J. Kelleher (1971-72), he practiced in San Francisco at Pillsbury, Madison & Sutro.

On September 7, 1989, Walker was nominated by President George H. W. Bush to the seat on the federal district court vacated by Spencer M. Williams.[1] Walker was confirmed by the U.S. Senate on November 21, 1989, on unanimous consent and received commission on November 27, 1989.
Views

Walker believes in a right wing conservative legal approach known as law and economics.[2]

Walker's original nomination to the bench by Ronald Reagan in 1987 stalled in the Senate Judiciary Committee because of controversy over his representation of the United States Olympic Committee in a lawsuit that prohibited the use of the title "Gay Olympics".[3] Two dozen House Democrats, led by Rep. Nancy Pelosi of San Francisco, opposed his nomination because of his perceived "insensitivity" to gays and the poor. Years later, the San Francisco Chronicle noted the irony of their opposition given his sexual orientation.[4]"

Walker is an "unorthodox" and "independent-minded conservative" judge who has called for auctioning lead counsel status in securities class actions and for the legalization of drugs.[3]"


For me the best line in the decision was, "tradition alone, however, cannot form a rational basis for a law.." because it reaffirms the the concept of judicial review which goes back to the founding fathers and the case of Marbury vs. Madison in 1803 which created judicial law making aka judicial review. In a word, there were activist judges in the USA since day 1 who believed the constitution was a living document that could be changed to suit societal needs(pace the views of Deacon Robert).

A distinction has to be made here. At the time of Marbury v. Madison, the notion of "judicial review" was grounded in the idea of applying Common Law (the concept of Law inherited from Britain) to particular cases. Underlying the Common Law concept was a belief in the existence of the Natural Law. In today's setting, the most aggressive activist judges are adherents of Positivism in the Law. There is no acknowledgement of Natural Law, or the existence of the Creator who is the Author of Natural Law. Law is what we make it to be. The manipulation of the Constitution by activist interpretation did not really set in in a serious way until the more modern era, i.e, around the time of the New Deal.

Dn. Robert

Deacon Robert, although you may be right, I do not accept the distinction you are trying to make. I see the whole issue as a continuum in which courts have gotten more assertive about their rights and consider this to be a logical development of the concept in Marbury. I recognize that some people believe that this is inappropriate, but I am a fan of FDR and what you call "manipulation of the Constitution." I call it judicial review when the court decides with my point of view and manipulation when goes along with the views of those on the right. It does not take a genius to realize, as we both know, that those who are conservative have the same feelings when a case is decided against their point of view.I realize my view may sound cynical, but so be it. Brown v Board of education is an example of how judicial review is good for society; if we did not have judicial review, schools might still be segregated. Be that as it may, your points are well taken and well argued.

What you call "manipulation" has it roots in Marbury vs Madison and one could argue against the concept of judicial review, although you should take it up with Justice John Marshall, our first chief justice..not me.!!!! In case you have not guessed, i am a great fan of earl warren and consider him to be the greatest justice of the last century and hope we see a court with more justices like him.

We'll have to agree to disagree!
Dn. Robert

I agree to disagree!

The judge/homosexual activist set a precedent with a legal "finding of fact" that says that “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” If it stands both the natural law and the entire Judeo-Christian system of morality will now legally be considered to be "harmful". The liberals will not stop until God and His Law is wiped clean from American law. Sadly, there are numerous people who just don't know any better and would happily see Jews, Christians and others who hold to God's morality put in jail.

What is going on? The Constitution is being thrown aside to create rights for immoral behavior. Sharia is taking root across the nation. We have a socialist in the White House.

We need to be great fans of Jesus Christ.

We need to follow our Constitution and not let judges toss it aside to support immoral social agendas.

Helen, I suggest you read the following comments that StuartK made:

"Don't go there. Would you want every Catholic judge to recuse himself from matters affecting abortion, contraception, and even marriage? [i]A judge should rule on the law, and not allow his personal feelings to interfere.[/i] A gay judge should rule based on the law, not on his own sexual preferences. A Catholic judge should rule on the law, not on the basis of Catholic doctrine. If either is incapable of doing that, then he should not only recuse himself from a particular case, he should resign from the bench.

Which, I admit, would cause quite a number of openings in the judiciary.

There was a reason the early Church thought holding public office was incompatible with Christian life, and banned magistrates from the Chalice for their term of office."

If you read Walker's decision, you will find he did follow the constitution. Obviousl;y, you disagree with his decision, butthat does not necessarily make him wrong. The Supreme court will sort it out.

No, he did not, which is why is ruling will be overturned. Look specifically at his findings of "fact" and you will see they are actually findings of his own particular bias.