Chief U.S. District Court Judge James Ware backed the original ruling by Judge Walker that the voter-approved ban on same-sex marriage in the state was unconstitutional.
The new order maintains the controversy on track to an expected Supreme Court challenge, eventually next year.
Federal Justice Ware's ruling rejected arguments that former Chief Judge Vaughn Walker would potentially benefit from declaring the ban unconstitutional. It was argued
that Walker's ability to impartially decide the controversial question of same-sex marriage was unsure, since he had revealed that he is gay and therefore should have
prejudices regarding the fate of Proposition 8.
Supporters of Prop. 8 are appealing the ruling on the motion and requiring Judge Walker to recuse.
This is first time in our nation's judicial history when a motion is to disqualify a judge based on sexual orientation. Judge Ware responded pronouncedly: "Gay judges
are just like minority and female jurists: They can be impartial, too, even in cases that might affect them."
Michael Cole Schwartz leader of the Human Rights Campaign was cited by CNN in April elaborating on this controversial ''strategic" motion: "Supporters of Proposition 8
are grasping at straws because they don't like the outcome. If their real intent was to 'protect marriage,' they should argue that a straight, married judge be disqualified
since he would conceivably have an interest in protecting his own marriage. The argument is simply ridiculous on its face."
Chief U.S. District Court Judge Ware wrote that the presumption that "all people in same-sex relationships think alike" is indeed unreasonable.
"The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial
decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief." On the contrary he said:
"it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on
the merits." Ware continues, stating 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
As a former law student of Justice Ware, I am well aware of his judicial practice and legal philosophy. He is mostly known for hearing a variety of Internet business-
related cases such as the sex.com ownership case and RealNetworks vs. Microsoft suit. In 2006, he heard the Google search terms suit. He ruled that
Google.com must turn over bulk data related to searches, in response to a government order designed to bolster support for an anti-pornography law that has already
been ruled unconstitutional. In September 2009, in Rocky Mountain Bank v. Google Inc., he ruled that Google must provide the identity and contact information for a
Gmail user that was mistakenly sent confidential information by the Rocky Mountain Bank. He also ordered Google to deactivate Gmail accounts.
But this is not a full depiction of Honorable James Ware. He was an amazing professor and taught our class a lot. He often included paramount cases on the Civil Rights
Movement in the U.S., conducted a fair and balanced argumentation on all important issues that entered the doors of the Federal Courts and Jurisdiction, and also
provided a legal philosophy that reflected what our Constitution intended to protect.