United States District Court Northern District of California

Case3:09-cv-02292-JW Document788 Filed05/25/11 Page1 of 18
1 Joren S. Bass, Bar No. 208143

[email protected]
2 David J. Tsai, Bar No. 244479
[email protected]
3 Allison Zamani, Bar No. 275136
[email protected]
4 PERKINS COIE LLP
Four Embarcadero Center, Suite 2400
5 San Francisco, CA 94111-4131
Telephone: 415.344.7000
6 Facsimile: 415.344.7050
7 Attorneys for Amici Curiae
Bay Area Lawyers for Individual Freedom, et al.
8
10 UNITED STATES DISTRICT COURT
11 NORTHERN DISTRICT OF CALIFORNIA
12
13 KRISTIN M. PERRY, SANDRA B. STIER, CASE NO. 09-CV-2292 JW

PAUL T. KATAMI, and JEFFREY J.
14 ZARRILLO, MOTION FOR LEAVE TO FILE
BRIEF OF AMICI CURIAE BAY
15 Plaintiffs, AREA LAWYERS FOR
INDIVIDUAL FREEDOM, ET AL. IN
16 v. OPPOSITION TO PROPONENTS’
MOTION TO VACATE JUDGMENT
17 CITY AND COUNTY OF SAN FRANCISCO,
Chief Judge James Ware
18 Plaintiff-Invervenor,
Date: June 13, 2011
19 v. Time: 9:00 a.m.
Location: Courtroom 5, 17th Floor
20 EDMUND G. BROWN, JR., in his official
capacity as Governor of California; KAMALA D.
21 HARRIS, in her official capacity as Attorney
General of California; MARK B. HORTON, in his
22 official capacity as Director of the California
Department of Public Health and State Registrar of
23 Vital Statistics; LINETTE SCOTT, in her official
capacity as Deputy Director of Health Information
24 & Strategic Planning for the California
Department of Public Health; PATRICK
25 O’CONNELL, in his official capacity as Clerk-
Recorder for the County of Alameda; and DEAN
26 C. LOGAN, in his official capacity as Registrar-
Recorder/County Clerk for the County of Los
27 Angeles,
28 Defendants,
MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE BAY AREA LAWYERS FOR INDIVIDUAL
FREEDOM, ET AL. IN OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT
Case No. 09-CV-2292 JW
1 and
2 PROPOSITION 8 OFFICIAL PROPONENTS
DENNIS HOLLINGSWORTH, GAIL J.
3 KNIGHT, MARTIN F. GUTIERREZ, HAK-
SHING WILLIAM TAM, and MARK A.
4 JANSSON; and PROTECTMARRIAGE.COM –
YES ON 8, A PROJECT OF CALIFORNIA
5 RENEWAL,
6 Defendant-Intervenors.
7
8 Additional Amici Curiae:
9 AIDS Legal Referral Panel, API Equality – LA, API Equality – Northern California,
10 Asian American Bar Association of the Greater Bay Area, Asian American Institute, Asian
11 American Justice Center, Asian Law Caucus, Asian Pacific American Bar Association of Los
12 Angeles County, Asian Pacific American Bar Association of Silicon Valley, Asian Pacific
13 American Legal Center, Asian Pacific Islander Legal Outreach, Bay Area Association of Muslim
14 Lawyers, The Black Women Lawyers Assn. of Northern California, The California Employment
15 Lawyers Association, The Charles Houston Bar Association, Courage Campaign, Equal Justice
16 Society, Family Equality Council, Fred T. Korematsu Center for Law and Equality, Freedom to
17 Marry, Gay & Lesbian Advocates & Defenders, Impact Fund, Iranian American Bar Association,
18 Korean American Bar Association of Northern California, Korean American Bar Association of
19 Southern California, Law Foundation of Silicon Valley, Lawyers’ Committee for Civil Rights of
20 the San Francisco Bay Area, Lesbian & Gay Lawyers Association of Los Angeles, Marin County
21 Bar Association, Marriage Equality USA, National Asian Pacific American Bar Association,
22 Philippine American Bar Association of Los Angeles, Queen’s Bench Bar Association,
23 Sacramento Lawyers for the Equality of Gays and Lesbians, San Francisco La Raza Lawyers
24 Association, Santa Clara County Bar Association, Santa Clara County Black Lawyers
25 Association, Society of American Law Teachers, Transgender Law Center, Vietnamese American
26 Bar Association of Northern California, and Women Lawyers of Alameda County.
27
28
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1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2 PLEASE TAKE NOTICE THAT Bay Area Lawyers for Individual Freedom, AIDS
3 Legal Referral Panel, API Equality – LA, API Equality – Northern California, Asian American
4 Bar Association of the Greater Bay Area, Asian American Institute, Asian American Justice
5 Center, Asian Law Caucus, Asian Pacific American Bar Association of Los Angeles County,
6 Asian Pacific American Bar Association of Silicon Valley, Asian Pacific American Legal Center,
7 Asian Pacific Islander Legal Outreach, Bay Area Association of Muslim Lawyers, The Black
8 Women Lawyers Assn. of Northern California, The California Employment Lawyers Association,
9 The Charles Houston Bar Association, Courage Campaign, Equal Justice Society, Family
10 Equality Council, Fred T. Korematsu Center for Law and Equality, Freedom to Marry, Gay &
11 Lesbian Advocates & Defenders, Impact Fund, Iranian American Bar Association, Korean
12 American Bar Association of Northern California, Korean American Bar Association of Southern
13 California, Law Foundation of Silicon Valley, Lawyers’ Committee for Civil Rights of the San
14 Francisco Bay Area, Lesbian & Gay Lawyers Association of Los Angeles, Marin County Bar
15 Association, Marriage Equality USA, National Asian Pacific American Bar Association,
16 Philippine American Bar Association of Los Angeles, Queen’s Bench Bar Association,
17 Sacramento Lawyers for the Equality of Gays and Lesbians, San Francisco La Raza Lawyers
18 Association, Santa Clara County Bar Association, Santa Clara County Black Lawyers
19 Association, Society of American Law Teachers, Transgender Law Center, Vietnamese American
20 Bar Association of Northern California, and Women Lawyers of Alameda County respectfully
21 request the Court’s leave to participate as amici curiae in the above-captioned case in opposition
22 to Defendant-Intervenors Dennis Hollingsworth, Gail J. Knight, Martin F. Guiterrez, Mark A.
23 Jansson, and ProtectMarriage.com’s Motion to Vacate Judgment.
24 I. STANDARD FOR MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
25 “District courts frequently welcome amicus briefs from non-parties concerning legal
26 issues that have potential ramifications beyond the parties directly involved or if the amicus has
27 ‘unique information or perspective that can help the court beyond the help that the lawyers for the
28 parties are able to provide.’” NGV Gaming, Ltd. v. Upstream Pont Molate, LLC, 355 F. Supp. 2d
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1 1061, 1067 (N.D.Cal.2005) (quoting Sonoma Falls Devs., LLC v. Nevada Gold & Casinos, Inc.,
2 272 F. Supp. 2d 919, 925 (N.D. Cal. 2003)). Participation of amici is particularly appropriate
3 where the legal issues in a case have potential ramifications beyond the parties directly involved
4 or where amici can offer a unique perspective that may assist the Court. Sonoma Falls, 272 F.
5 Supp. 2d at 925.
6 II. IDENTITY AND INTEREST OF AMICI CURIAE
7 Bay Area Lawyers For Individual Freedom (“BALIF”) is the nation’s oldest and
8 largest bar association of lesbian, gay, bisexual and transgender (“LGBT”) persons. Founded in
9 1980, BALIF serves to take action on questions of law and justice that affect the LGBT
10 community; strengthen ties among LGBT legal professionals; build coalitions to combat
11 discrimination; promote the appointment of LGBT attorneys to the judiciary, public agencies, and
12 commissions; fund scholarships for LGBT laws students and fellowships for public interest
13 lawyers working on LGBT issues; and provide a forum for the exchange of ideas and information
14 of concern to members of the LGBT legal community.
15 The AIDS Legal Referral Panel (“ALRP”) supports the independence of the judicial
16 branch and does not believe that a judge’s membership in a minority group or protected class
17 should prevent her from presiding over a case. A judge living with a disability, including
18 HIV/AIDS, should not be precluded from deciding issues related to disability discrimination just
19 as an African-American judge should not be barred from deciding a case involving race
20 discrimination. To hold otherwise would effectively negate the very important value of
21 promoting diversity within the judicial branch.
22 API Equality–LA advocates in the Greater Los Angeles Asian and Pacific Islander (API)
23 community for fair treatment of lesbian, gay, bisexual, and transgender (LGBT) people and
24 marriage equality. API Equality–LA recognizes that the long history of discrimination against
25 the API community, especially California's history of anti-miscegenation laws and exclusionary
26 efforts targeted at Asian immigrants, parallels the contemporary exclusion of lesbians and gay
27 men from marriage in California. Because API Equality–LA is dedicated to achieving mutual
28
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1 respect and security for all loving families, including those of devoted same-sex couples, it has an
2 interest in this litigation and seeks to participate as an amicus curiae.
3 API Equality – Northern California is a coalition of Asian Pacific Islander (API) and
4 Lesbian, Gay, Bisexual, Trans, Intersex, and Queer/Questioning (LGBTIQ) of organizations and
5 individuals that is committed to reducing and eliminating prejudice and oppression based on
6 gender, gender identity, and/or sexual orientation in the diverse ethnic communities of the API
7 populace and to reducing and eliminating racially-motivated or xenophobic prejudice and
8 oppression in the LGBTQI community. API Equality – Northern California is dedicated to
9 empowering community members, advancing civil rights protections, and promoting respect and
10 understanding for cultural and community diversity.
11 The Asian American Bar Association of the Greater Bay Area (“AABA”) was founded
12 in 1976 to provide Asian American attorneys in the San Francisco Bay Area with a vehicle for the
13 unified expression of opinions and positions on matters of concern to all Asian Pacific Americans
14 (APA). Throughout its history, AABA has led and supported efforts to overturn discrimination
15 against minority communities on all fronts. For the past five years, AABA has played an active
16 role in supporting marriage equality for all Californians. AABA has a special interest in
17 challenging discrimination by and in the government.
18 Asian American Institute, Member of Asian American Center for Advancing Justice
19 (“AAI”), is a pan-Asian, non-partisan, not-for-profit organization located in Chicago, Illinois,
20 whose mission is to empower and advocate for the Asian American community through
21 advocacy, coalition-building, education, and research. AAI is a member of the Asian American
22 Center for Advancing Justice, whose other members include Asian American Justice Center,
23 Asian Law Caucus, and Asian Pacific American Legal Center. AAI’s programs include
24 community organizing, leadership development, and legal advocacy. AAI is deeply concerned
25 about the discrimination and lack of fair representation faced by minorities and marginalized
26 communities. Accordingly, AAI has a strong interest in this case.
27 The Asian American Justice Center, Member of the Asian American Center for
28 Advancing Justice (“AAJC”), is a national non-profit, non-partisan organization in Washington,
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1 D.C., whose mission is to advance the civil and human rights of Asian Americans and build and
2 promote a fair and equitable society for all. Founded in 1991, AAJC engages in litigation, public
3 policy, advocacy, and community education and outreach on a range of issues, including anti-
4 discrimination. AAJC is committed to challenging barriers to equality for all sectors of our
5 society and has supported marriage rights for same-sex partners as an amicus curiae in other
6 cases on this issue.
7 The Asian Law Caucus, Member of the Asian American Center for Advancing
8 Justice (“ALC”), is the oldest Asian American legal rights organization devoted to protecting the
9 civil rights of all racial and ethnic minorities. The mission of ALC is to promote, advance, and
10 represent the legal and civil rights of Asian and Pacific Islander communities. Recognizing that
11 social, economic, political and racial inequalities continue to exist in the United States, ALC is
12 committed to the pursuit of equality and justice for all sectors of our society. ALC has a strong
13 interest in protecting the integrity of the core constitutional principle of equal protection of the
14 law for all Americans.
15 The Asian Pacific American Bar Association of Los Angeles County (“APABA-LA”)
16 is comprised of attorneys, judges, commissioners and law students throughout Los Angeles
17 County. APABA-LA provides legal education and assistance to underserved communities;
18 sponsors programs in professional development, community education, and law student
19 mentorship; and addresses issues that impact Asian Pacific Americans and other minorities. In
20 furtherance of its mission, APABA-LA has and continues to advocate for equal rights for
21 members of the LGBT community and to oppose discrimination based upon sexual orientation.
22 The Asian Pacific American Bar Association of Silicon Valley (“APABA-SV”), formed
23 over 20 years ago, serves to foster professional development, advocacy, and community
24 involvement for Silicon Valley's Asian Pacific American legal community, and to promote justice
25 and equality for all. APABA-SV members will be affected by any decision concerning whether
26 membership in a minority group prevents a judge from presiding in litigation involving that
27 minority group. Additionally, many LGBT individuals are Asian Americans and affected by
28
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1 Proposition 8, so the outcome of this case directly affects people within the Asian American
2 community. APABA-SV, therefore, has an interest in this motion to vacate trial judgment.
3 The Asian Pacific American Legal Center, Member of the Asian American Center
4 for Advancing Justice (“APALC”), is a nonprofit legal organization that serves the Asian and
5 Pacific Islander communities through impact litigation, direct services, leadership development,
6 and public policy advocacy. Since its founding in 1983, APALC has been a leading civil rights
7 voice, advocating against discrimination and working across diverse communities to promote
8 justice, on issues ranging from race to language and immigration to sexual orientation. APALC
9 also works to increase diversity in the legal profession and judiciary. APALC joins this amicus
10 brief because it strongly believes that diverse members of the judiciary contribute to a legal
11 system that promotes equality and justice, and any attempt to suggest otherwise is contrary to
12 basic notions of fairness.
13 Asian Pacific Islander Legal Outreach (“API Legal Outreach”) is a community-based,
14 social justice organization serving the Asian and Pacific Islander communities of the Greater Bay
15 Area. Founded in 1975, our mission is to promote culturally and linguistically appropriate
16 services for the most marginalized segments of the API community. Our work is currently
17 focused in the areas domestic violence, violence against women, immigration and immigrant
18 rights, senior law and elder abuse, human trafficking, public benefits, and social justice
19 issues. API Legal Outreach has been fighting against all forms of discrimination, especially
20 against the LGBTQ community, for many years. API Legal Outreach is a member of API
21 Equality, and also was the lead author of an amicus brief for the 2006 Woo v. Lockyer case
22 advocating for the rights of same-sex marriage. The brief represented 28 Asian American
23 organizations and was joined by over 60 Asian American organizations.
24 The Bay Area Association of Muslim Lawyers believe in the exercise of judicial
25 freedom. Judicial opinions should not be scrutinized based on the sexual orientation, race or
26 religion of our Judicial officers. Judge Vaughn Walker has upheld the law of the United States by
27 serving on the Federal Bench for over twenty years. His record does not in any way show that he
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1 has compromised a judicial opinion based on his own bias. We hope the court will stand by it's
2 decision to strike down prop 8 because it violates the civil and human rights of our citizens.
3 The Black Women Lawyers Association of Northern California (“BWLNC”) is a non-
4 profit organization founded in 1979 representing the interests of African American women
5 attorneys, judges and law students throughout Northern California. The mission of the BWLNC
6 is to provide professional, financial, educational, social, and moral support for Black women in
7 the legal profession. Part of this goal necessarily includes combating bias wherever it may occur.
8 Dr. Martin Luther King, Jr. once said that “Injustice anywhere is a threat to justice everywhere.”
9 BWLNC firmly believes that the attack on Judge Vaughn Walker based on his sexual orientation
10 is no different than the racist attacks in the past and present on Black women seeking to practice
11 in this esteemed profession. Thus, we find it completely and totally abhorrent that Proposition 8
12 proponents now argue that Judge Walker should have recused himself from the case at
13 issue because he is gay and has been in a long-term relationship for the past 10 years with another
14 man. We join Bay Area Lawyers for Individual Freedom (BALIF) in their amicus brief to the
15 court on the basis that judiciary independence should never be thwarted by looking at a judge's
16 personal beliefs and/or status and that no member of a minority group should be disqualified from
17 ruling on or participating in any litigation that is of major consequence to that particular group.
18 The California Employment Lawyers Association (“CELA”) is an organization
19 composed of approximately 1000 attorneys who represent primarily plaintiffs in employment
20 discrimination cases and other matters arising in the workplace. Ensuring civil rights lies at the
21 core of CELA's mission. CELA has participated in amicus coalitions in both the
22 California litigation and federal litigation relating to Proposition 8.
23 The Charles Houston Bar Association (“CHBA”) is a non-profit organization founded
24 in 1955 representing the interests of African American attorneys, judges and law students
25 throughout Northern California. The mission of the Association is to improve access to justice; to
26 promote equal protection under the law; to be proactive in increasing diversity within the legal
27 community and to the bench; to bring services to the community; and to support the Association’s
28 judges, attorneys and law students. One of our core values is to eradicate injustice within and
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1 throughout the legal community. Thus, we find it completely and totally abhorrent that
2 Proposition 8 proponents now argue that Judge Walker should have recused himself from the case
3 at issue because he is gay and has been in a long-term relationship for the past 10 years with
4 another man. We join Bay Area Lawyers for Individual Freedom (BALIF) in their amicus brief
5 to the court on the basis that judiciary independence should never be thwarted by looking at a
6 judge's personal beliefs and/or status and that no member of a minority group should be
7 disqualified from ruling on or participating in any litigation that is of major consequence to that
8 particular group.
9 The Courage Campaign is a nonprofit California-based social justice organization
10 comprised of hundreds of thousands of Californians and is supported by thousands of small
11 financial donors. In January 2010, Courage Campaign created a website to follow the trial,
12 prop8trialtracker.com, that has been viewed more an 4 million times and more than 138,000
13 Courage Campaign members submitted comments in Perry v. Schwarzenegger asking the court to
14 broadcast the trial on YouTube.
15 The Equal Justice Society (“EJS”) is a national organization of scholars, advocates, and
16 citizens that seeks to promote equal opportunity and progressive social change through law,
17 public policy, public education, and research. The primary mission of EJS is to combat the
18 continuing scourge of racial discrimination and inequality in America. Consistent with that
19 mission, EJS works to confront all manifestations of invidious discrimination and second-class
20 citizenship. Such threats to dignity spring from a common source and endanger everyone, no
21 matter the context in which they arise.
22 Family Equality Council, founded in 1979, is a national organization working to achieve
23 social and legal equality for LGBT families by providing direct support, educating the American
24 public, and advancing policy reform that ensures full recognition and protection under the law.
25 Family Equality Council has more than 65,000 supporters, thousands of which are located in
26 California. As a national organization, Family Equality Council has broad experience protecting
27 the rights of LGBT-headed families and serving the over 200 local parents groups that support
28 them.
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1 The Fred T. Korematsu Center for Law and Equality (“Korematsu Center”) is a
2 nonprofit organization based at Seattle University School of Law and works to advance justice
3 through research, advocacy, and education. The Korematsu Center is dedicated to advancing the
4 legacy of Fred Korematsu, who defied the military orders during World War II that ultimately led
5 to the internment of 110,000 Japanese Americans. He took his challenge of the military orders to
6 the United States Supreme Court, which upheld his conviction in 1944 on the ground that the
7 removal of Japanese Americans was justified by “military necessity.” Fred Korematsu went on to
8 successfully challenge his conviction and to champion the cause of civil liberties and civil rights
9 for all people. The Korematsu Center, inspired by his example, works to advance his legacy by
10 promoting justice for all. It has a strong interest in protecting the integrity of the core
11 constitutional principles of equal protection and fundamental rights, and ensuring the courts’ role
12 as final arbiter of these constitutional guarantees. It has a strong interest in improving judicial
13 diversity as well as ensuring judicial independence. We note that the Korematsu Center does not,
14 in this brief or otherwise, represent the official views of Seattle University.
15 Freedom to Marry is the national campaign to end marriage discrimination in the United
16 States. Freedom to Marry works with partner organizations and individuals to win the right to
17 marry in more states, solidify and diversify the majority for marriage, and challenge and end
18 federal marriage discrimination. Freedom to Marry is based in New York, with offices in Oregon
19 and DC, and has participated as amicus curiae in several marriage cases in the United States and
20 abroad.
21 Gay & Lesbian Advocates & Defenders (“GLAD”) is a leading legal rights organization
22 dedicated to ending discrimination based upon sexual orientation, HIV status, and gender identity
23 and expression. GLAD has challenged discrimination in marriage in several states. Most
24 notably, these cases include Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003),
25 and Kerrigan v. Dept. of Public Health, 957 A.2d 407 (Conn. 2008) (establishing the right of
26 same-sex couples to marry under the Massachusetts and Connecticut constitutions). In addition,
27 GLAD has appeared as counsel or amicus curiae in numerous litigations involving discrimination
28 based on sexual orientation, HIV status, and gender identity and expression.
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1 The Impact Fund is a non-profit foundation that provides funding, training, and co-
2 counsel to public interest litigators across the country. It is a State Bar Legal Services Trust Fund
3 Support Center, providing services to legal services projects across California. The Impact Fund
4 is counsel in a number of major civil rights class actions and is lead counsel in Dukes v. Wal-Mart
5 Stores, Inc., 603 F.3d 571 (9th Cir.), cert. granted, 131 S. Ct. 795 (2010), the largest employment
6 discrimination class action in history.
7 Incorporated in 2000 in the District of Colombia, the Iranian American Bar Association
8 (“IABA”) is a non-profit organization of more than 1,500 attorneys in over 9 official chapters
9 nationwide. IABA is the only national association of Iranian judges, lawyers, and law students
10 organized for the specific purpose of protecting the rights of the Iranian American community.
11 IABA’s core mission is to promote the “social, economic, professional and educational
12 advancement of the Iranian American community and the community at large.” Additionally,
13 IABA advocates nationally on legal issues that are of widespread interest to the Iranian American
14 community. To accomplish these goals, one of IABA's primary tasks is to prevent discrimination
15 based on ethnic, cultural or religious background.
16 The Korean American Bar Association of Northern California (“KABANC”) has
17 served Korean American lawyers and the local Korean community since the mid-1980s and was
18 founded to encourage and promote the professional growth of Korean-American lawyers and law
19 students in Northern California; to foster networking, support, and the exchange of ideas and
20 information among its members and with the local Korean-American community; and to work
21 with other Asian, minority, and community organizations on matters of common concern.
22 KABANC joins this amicus brief to further the protection of minority rights, including those of
23 gays and lesbians.
24 The Korean American Bar Association of Southern California (“KABA”) is the
25 largest and oldest organization of Korean-American attorneys, judges, professors, law students,
26 and community leaders in the country. Since the civil unrest in Los Angeles in 1992, KABA has
27 been a leading advocate for the Korean-American community and has worked tirelessly to
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1 promote reconciliation, understanding and peace within the greater Los Angeles region and
2 beyond. KABA supports the effort to ensure justice and equality for all persons.
3 Founded in 1974, the Law Foundation of Silicon Valley is a private nonprofit
4 corporation in San Jose that sponsors five free legal services and advocacy programs. Its mission
5 is to secure justice and protect human rights by providing legal advocacy, counseling, and access
6 to the legal system for those who would otherwise be underrepresented. The Law Foundation has
7 a strong interest in protecting the equal protection rights of our clients and members of the
8 communities that we serve, and assuring that they are protected from discrimination, particularly
9 as to their fundamental rights such as the right to marry.
10 The Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (“LCCR”) is
11 affiliated with the national Lawyers’ Committee for Civil Rights Under Law, established in 1963
12 at the urging of President John F. Kennedy. LCCR was formed to support the rights of minority
13 and low-income persons by offering free legal assistance in civil matters and by litigating cases
14 on behalf of the traditionally underrepresented. In addition, LCCR monitors judicial proceedings
15 and legislation that affect the traditionally disadvantaged and frequently files amicus briefs in
16 cases challenging discriminatory policies and practices. Because advancing the rights of LGBT
17 individuals is integral to any civil rights agenda, LCCR’s amicus work has encompassed these
18 issues as well.
19 The Lesbian and Gay Lawyers Association of Los Angeles (“LGLA”) was formed in
20 the aftermath of a bitter battle over the 1978 Proposition 6, a California ballot measure backed by
21 State Senator John Briggs seeking to ban homosexuals from the profession of teaching in
22 California. Since its first meeting in 1979, LGLA, the only bar association of its kind in Southern
23 California, has served lesbian, gay, bisexual and transgender (“LGBT”) legal professionals
24 through traditional bar association programs including judicial endorsements, networking events,
25 continual legal education programs, student mentoring, scholarships, etc. In addition, LGLA is
26 active in advocating equality and justice for the LGBT legal professionals and LGBT community
27 at-large through amicus briefing, education forums, and active leadership or affiliation in other
28 influential bars such as the Los Angeles County Bar Association programs, the State Bar of
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1 California, the National LGBT Bar Association, which is itself an affiliate of the American Bar
2 Association.
3 The Marin County Bar Association (the “MCBA”) is a voluntary organization of almost
4 700 members. A primary mission of the MCBA is to promote the rational and coherent
5 administration of justice, which includes supporting an independent judiciary and educating the
6 public on the importance of the judicial system. Since its establishment in 1937, the MCBA has
7 declined to take any position or action that might be considered political in nature or that involves
8 an issue before the electorate. Proposition 8 changed that. The importance of the civil rights and
9 judicial independence issues raised by Proposition 8 prompted our organization to adopt a formal
10 position in opposition to the proposition, a position approved both by board action and a full
11 membership vote in 2008. The fundamental importance of an independent judiciary to our
12 justice system again prompts us to take a position by joining in this brief. The status of a judge
13 should never be used as a shield or a sword by those who disagree with that judge’s rulings.
14 Marriage Equality USA (“MEUSA”) is a national, not-for-profit, all-volunteer
15 corporation that leads a nonpartisan, grassroots educational effort to secure legally recognized
16 civil marriage equality at the federal and state level without regard to gender identity or sexual
17 orientation. MEUSA employs educational and outreach programs, media presentations,
18 partnerships with other organizations that support equality, and a strong membership that engages
19 in local events, including asking for marriage licenses for same-sex couples on Valentine’s Day.
20 MEUSA has a strong presence in California, with 26 county-based chapters, as well as chapters in
21 Arizona, Florida, Iowa, New Hampshire, Ohio, Pennsylvania, and Virginia.
22 The National Asian Pacific American Bar Association (“NAPABA”) is the national
23 association of Asian Pacific American attorneys, judges, law professors, and law students.
24 NAPABA represents the interests of over 40,000 attorneys and 60 local and regional Asian
25 Pacific American bar associations. Our members work variously in solo practices, large firms,
26 corporations, legal services organizations, non-profit organizations, law schools, and government
27 agencies. Since its inception in 1988, NAPABA has been at the forefront of national and local
28
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1 activities in the areas of civil rights. NAPABA joins amici to oppose the challenging of jurist's
2 impartiality based solely on the individual's race, sex, or sexual orientation.
3 The Philippine American Bar Association of Los Angeles (“PABA”) addresses the
4 legal issues confronting the Filipino-American community as well as the professional concerns of
5 Filipino-American lawyers in Southern California. PABA, whose membership includes LGBT
6 professionals, is an ardent supporter of equal rights for members of the LGBT community.
7 PABA believes that progress in civil rights for insular minorities is most effective while working
8 in coalition with the broader community. Thus, PABA partners with other civil-rights minded
9 organizations to advance the cause of justice and the protection of the legal process.
10 Queen’s Bench Bar Association is a non-profit voluntary membership organization made
11 up of judges, lawyers and law students in the San Francisco Bay Area. Established in 1921,
12 Queen’s Bench is one of the oldest women’s bar associations in the country. Queen’s Bench
13 seeks to advance the interests of women in law and society, and to serve the professional needs of
14 women lawyers, judges and law students. The Queen’s Bench Bylaws include among its
15 purposes the promotion and maintenance of “a skilled, humane and independent judiciary” and
16 the “sound administration of justice,” as well as the furtherance of equal opportunity in the legal
17 profession and the judiciary. Queen’s Bench has a strong and demonstrated interest in the
18 preservation of the Constitutional right to equal protection of the laws and judicial independence.
19 Sacramento Lawyers for the Equality of Gays and Lesbians (“SacLEGAL”) is a
20 professional association of attorneys, legal professionals, and legislative advocates, affiliated with
21 the Sacramento County Bar Association and the National LGBT (Lesbian, Gay, Bisexual and
22 Transgender) Bar Association. SacLEGAL’s mission is to promote equality for members of the
23 LGBT community through providing strong leadership, legislative advocacy, education, and
24 participation in civic and social activities within the legal community and community at large.
25 Specifically, SacLEGAL’s mission statement includes as among the purposes of the existence of
26 the organization to defend and expand the legal rights of LGBT people to ensure equality, and to
27 secure for LGBT individuals basic human and civil rights, such as the right to be free from
28 discrimination. As such, SacLEGAL members have a strong interest in the legal status of LGBT
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1 individuals, couples and families, and in efforts to promote legal equality and nondiscrimination
2 for the LGBT community. SacLEGAL believes this case implicates those goals and purposes.
3 SacLEGAL construes Proposition 8 as a major retrenchment and reduction of legal rights of gay
4 people, changing the nondiscriminatory rules of law which promoted LGBT equality set forth in
5 the Marriage Cases, into a legal climate that requires official State discrimination against gay
6 people with a resulting inequality and second-class status. SacLEGAL considers this inequality
7 and second-class status to be highly injurious to the broader community of gay people, as well as
8 specifically to those who wish to marry. SacLEGAL believes the motion to vacate the trial
9 judgment would inflict further injury upon the gay community and thus is directly in conflict with
10 SacLEGAL’s goals and mission.
11 Since our founding in 1971, San Francisco La Raza Lawyers Association (“SFLRLA”)
12 has served the public interest by promoting legal reform in order to serve the interests of justice
13 for all persons and by otherwise facilitating the administration of justice. SFLRLA has a proud
14 history of advocating for civil rights, equality under the law, and fair representation for the
15 Latino/a and other diverse communities. SFLRLA continues this tradition in signing this amicus
16 brief.
17 Founded in 1917, the Santa Clara County Bar Association (“SCCBA”) is a nonprofit
18 membership association of approximately 3,400 legal professionals. The SCCBA is committed to
19 promoting full and equal access to the legal system by all individuals, and is a leader in opposing
20 discrimination against gay men and lesbians. The SCCBA, through its formal resolutions and
21 commitment to amicus briefs in prior relevant litigation, opposes the Motion to Vacate Judgment
22 that based on the bias of Federal District Judge Vaughn Walker as the SCCBA believes that a
23 judge’s minority status does not per se disqualify that judge from hearing a case involving that
24 minority and that to do so undermines judicial independence and equality.
25 The Santa Clara County Black Lawyers Association is an advocate for equal
26 opportunity and justice for all citizens of the United States. The right of a judge to participate
27 fully in the judicial system must be safeguarded against perceived notions that the race,
28 sex, creed, or sexual orientation of such judge renders them unable to be impartial and
- 14 -
1 unbiased to issues encompassing their race, sex, creed, or sexual orientation. The mere fact that a
2 judge is African-American should not preclude them from hearing all cases where an African-
3 American is a party to the case or where issues concerning African-American’s are at stake. In the
4 same manner, a Caucasian male judge should not barred from hearing a case where majority-
5 minority race issues or male-female gender issues are at stake.
6 The Society of American Law Teachers (“SALT”) is an association of law faculty,
7 administrators, and legal education professionals from law schools across the nation.
8 Incorporated in 1974, SALT was founded by a group of leading law professors dedicated to
9 improving the quality of legal education by making it more responsive to societal concerns.
10 SALT has worked within the legal academy to develop a jurisprudence to end discrimination of
11 historically underrepresented groups, including discrimination based on sexual orientation and
12 has appeared as amicus curiae in federal and state courts to further these claims to equal access to
13 education, employment, and to full participation in civic life.
14 The Transgender Law Center (“TLC”) is a civil rights organization advocating for
15 transgender communities. TLC connects transgender people and their families to technically
16 sound and culturally competent legal services, increase acceptance and enforcement of laws and
17 policies that support transgender communities, and work to change laws and systems that fail to
18 incorporate the needs and experiences of transgender people. TLC has an interest in protecting
19 minorities from being stripped of their civil rights by majority vote.
20 The Vietnamese American Bar Association of Northern California (“VABANC”) was
21 founded in 1998 to provide Vietnamese American attorneys with a vehicle for the unified
22 expression of opinions and positions on matters of concern to all Vietnamese American attorneys,
23 to encourage and promote the professional growth of its members, and to foster the exchange of
24 ideas and information among its members and with the community at large. As such, VABANC
25 is concerned on issues of diversity and equality. VABANC supports that judiciary independence
26 should never be thwarted by looking at a judge's personal beliefs and/or status and membership in
27 a minority group should not prevent a judge from presiding in litigation involving that minority
28 group.
- 15 -
1 Women Lawyers of Alameda County (“WLAC”) has been “a voice for women in the
2 law” since 1980. Born out of necessity to address gender bias and gender discrimination in both
3 the application of law and the practice of law, in our thirty years of existence, WLAC has worked
4 tirelessly to advance the needs, desires, and interests of all women in Alameda County. Drawing
5 upon our core values, and as a member of the Minority Bar Association, WLAC recognizes that
6 discrimination and bias against one is discrimination and bias against all. We proudly join in this
7 amicus brief.
8 III. CONCLUSION
9 For the foregoing reasons, Bay Area Lawyers for Individual Freedom, AIDS Legal
10 Referral Panel, API Equality – LA, API Equality – Northern California, Asian American Bar
11 Association of the Greater Bay Area, Asian American Institute, Asian American Justice Center,
12 Asian Law Caucus, Asian Pacific American Bar Association of Los Angeles County, Asian
13 Pacific American Bar Association of Silicon Valley, Asian Pacific American Legal Center, Asian
14 Pacific Islander Legal Outreach, Bay Area Association of Muslim Lawyers, The Black Women
15 Lawyers Assn. of Northern California, The California Employment Lawyers Association, The
16 Charles Houston Bar Association, Courage Campaign, Equal Justice Society, Family Equality
17 Council, Fred T. Korematsu Center for Law and Equality, Freedom to Marry, Gay & Lesbian
18 Advocates & Defenders, Impact Fund, Iranian American Bar Association, Korean American Bar
19 Association of Northern California, Korean American Bar Association of Southern California,
20 Law Foundation of Silicon Valley, Lawyers’ Committee for Civil Rights of the San Francisco
21 Bay Area, Lesbian & Gay Lawyers Association of Los Angeles, Marin County Bar Association,
22 Marriage Equality USA, National Asian Pacific American Bar Association, Philippine American
23 Bar Association of Los Angeles, Queen’s Bench Bar Association, Sacramento Lawyers for the
24 Equality of Gays and Lesbians, San Francisco La Raza Lawyers Association, Santa Clara County
25 Bar Association, Santa Clara County Black Lawyers Association, Society of American Law
26 Teachers, Transgender Law Center, Vietnamese American Bar Association of Northern
27 California, and Women Lawyers of Alameda County respectfully request the Court’s leave to
28 submit a brief amici curiae.
- 16 -
1
DATED: May 25, 2011 PERKINS COIE LLP
2
3 By: /s/ Joren S. Bass

Joren S. Bass
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Bay Area Lawyers for Individual Freedom, et
6 al.
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77476-0001/LEGAL20866230
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Case3:09-cv-02292-JW Document788-1 Filed05/25/11 Page1 of 15

[email protected]
[email protected]
[email protected]
4 PERKINS COIE LLP
Telephone: 415.344.7000
6 Facsimile: 415.344.7050
8
[Additional Amici Curiae listed on next page]
9
12

14 ZARRILLO, BRIEF OF AMICI CURIAE BAY
AREA LAWYERS FOR
15 Plaintiffs, INDIVIDUAL FREEDOM, ET AL. IN
OPPOSITION TO PROPONENTS’
16 v. MOTION TO VACATE JUDGMENT
17 CITY AND COUNTY OF SAN FRANCISCO, Chief Judge James Ware
18 Plaintiff-Intervenor, Date: June 13, 2011
Time: 9:00 a.m.
19 v. Location: Courtroom 5, 17th Floor
20 EDMUND G. BROWN, JR., in his official
25 O’CONNELL, in his official capacity as Clerk-
27 Angeles,
28 Defendants,
1
BRIEF OF AMICI CURIAE BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM, ET AL. IN OPPOSITION
TO PROPONENTS’ MOTION TO VACATE JUDGMENT
1
and
2
PROPOSITION 8 OFFICIAL PROPONENTS
3 DENNIS HOLLINGSWORTH, GAIL J.
KNIGHT, MARTIN F. GUTIERREZ, HAK-
4 SHING WILLIAM TAM, and MARK A.
JANSSON; and PROTECTMARRIAGE.COM –
5 YES ON 8, A PROJECT OF CALIFORNIA
RENEWAL,
6
Defendant-Intervenors.
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TABLE OF CONTENTS
2
PAGE
3
4 IDENTITY OF AMICI CURIAE................................................................................................... 1
5 INTRODUCTION ........................................................................................................................ 1
6 ARGUMENT ................................................................................................................................ 2
7 I. COURTS HAVE UNIFORMLY REJECTED CHALLENGES BASED ON

JUDGES’ AFFILIATIONS WITH MINORITY COMMUNITIES................................. 3
8
A. Courts Have Uniformly Rejected Demands For Recusal Based Directly On A
9 Judge’s Race, Religion, And/Or Gender................................................................... 3
10 B. Courts Have Uniformly Rejected Recusal Demands That Serve As Proxies

For Characteristics Such As Race And Religion ...................................................... 5
11
II. LIKE RACE, RELIGION AND GENDER, SEXUAL ORIENTATION AND
12 THE MANNER IN WHICH IT IS EXPRESSED ARE NOT PROPER BASES
FOR RECUSAL................................................................................................................ 7
13
CONCLUSION ........................................................................................................................... 10
14
15
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i
1 TABLE OF AUTHORITIES
PAGE
2 CASES
3 Baker v. Detroit,
458 F. Supp. 374 (E.D. Mich. 1978)................................................................................... 6
4
Blank v. Sullivan & Cromwell,
5 418 F. Supp. 1 (S.D.N.Y. 1975)...................................................................................... 5, 8
6 Day v. Apoliona,
451 F. Supp. 2d 1133 (D. Haw. 2006) ................................................................................ 3
7
Feminist Women’s Health Center v. Codispoti,
8 69 F.3d 399 (9th Cir. 1995)................................................................................................. 4
9 Idaho v. Freeman,
507 F. Supp. 706 (D. Idaho 1981)....................................................................................... 6
10
In re City of Houston,
11 745 F.2d 925 (5th Cir. 1984)........................................................................................... 4, 9
12 LeRoy v. City of Houston,
592 F. Supp. 415 (S.D. Tex. 1984) ..................................................................................... 6
13
MacDraw, Inc. v. CIT Group Equipment Financing,
14 138 F.3d 33 (2d Cir. 1998).......................................................................................... 3, 7, 8
15 Paschall v. Mayone,
454 F. Supp. 1289 (S.D.N.Y. 1978).................................................................................... 6
16
Pennsylvania v. Local Union 542, International Union of Operating Engineers,
17 388 F. Supp. 155 (E.D. Pa. 1974) ............................................................................... 5, 8, 9
18 Reiffin v. Microsoft Corp.,
158 F. Supp. 2d 1016 (N.D. Cal. 2001) .......................................................................... 7, 8
19
Singer v. Wadman,
20 745 F.2d 606 (10th Cir. 1984)............................................................................................. 6
21 Torres v. Chrysler Fin. Co.,
2007 WL 3165665 (N.D. Cal. Oct. 25, 2007)................................................................. 7, 8
22
United States v. Alabama,
23 582 F. Supp. 1197 (N.D. Ala. 1984) ................................................................................... 7
24 United States v. Alabama,
828 F.2d 1532 (11th Cir. 1987)............................................................................... 3, 4, 7, 9
25
United States v. EI-Gabrowny,
26 844 F. Supp. 955 (S.D.N.Y. 1994).............................................................................. 5, 6, 8
27 United States v. Nelson,
2010 U.S. Dist. LEXIS 63814 (E.D.N.Y. June 28, 2010) .................................................. 4
28
i
TO PROPONENTS’ MOTION TO VACATE JUDGMENT Case No. 09-CV-2292 JW
1 Vietnamese Fishermen’s Ass’n v. The Knights of the Ku Klux Klan,

518 F. Supp. 1017 (S.D. Tex. 1981) ............................................................................... 4, 8
2
STATUTES
3
28 U.S.C. § 455 ................................................................................................................. 2, 3, 8
4
10
11
12
13
14
15
16
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20
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26
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ii
1 IDENTITY OF AMICI CURIAE

2 Bay Area Lawyers for Individual Freedom, AIDS Legal Referral Panel, API Equality –
3 LA, API Equality – Northern California, Asian American Bar Association of the Greater Bay
4 Area, Asian American Institute, Asian American Justice Center, Asian Law Caucus, Asian
5 Pacific American Bar Association of Los Angeles County, Asian Pacific American Bar
6 Association of Silicon Valley, Asian Pacific American Legal Center, Asian Pacific Islander Legal
7 Outreach, Bay Area Association of Muslim Lawyers, The Black Women Lawyers Association of
8 Northern California, The California Employment Lawyers Association, The Charles Houston Bar
9 Association, Courage Campaign, Equal Justice Society, Family Equality Council, Fred T.
10 Korematsu Center for Law and Equality, Freedom to Marry, Gay & Lesbian Advocates &
11 Defenders, Impact Fund, Iranian American Bar Association, Korean American Bar Association of
12 Northern California, Korean American Bar Association of Southern California, Law Foundation
13 of Silicon Valley, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, Lesbian
14 & Gay Lawyers Association of Los Angeles, Marin County Bar Association, Marriage Equality
15 USA, National Asian Pacific American Bar Association, Philippine American Bar Association of
16 Los Angeles, Queen’s Bench Bar Association, Sacramento Lawyers for the Equality of Gays and
17 Lesbians, San Francisco La Raza Lawyers Association, Santa Clara County Bar Association,
18 Santa Clara County Black Lawyers Association, Society of American Law Teachers, Transgender
19 Law Center, Vietnamese American Bar Association of Northern California, and Women Lawyers
20 of Alameda County.
21 The undersigned Amici Curiae submit the following memorandum to urge the Court to
22 deny Defendant-Intervenors’ (“Petitioners”) Motion To Vacate Judgment (the “Motion”). The
23 Motion is based on invidious “presumptions” about gay and lesbian jurists that this Court should
24 not entertain, and the relief sought is inconsistent with dearly held principles of equality, judicial
25 independence, and public confidence in the integrity of our judicial system.
26 INTRODUCTION
27 Over the years, litigants have occasionally attempted to use judges’ affiliations with
28 minority communities to disqualify them. Some parties have made naked challenges based on a
1
TO PROPONENTS’ MOTION TO VACATE JUDGMENT Case No. 09-CV-2292 JW
1 judge’s association with a particular community, while others have more obliquely asserted that a
2 judge cannot separate his individual interests from those of his community. With good reason,
3 these challenges have been uniformly rejected: a challenge, whether explicit or tacit, which seeks
4 to disqualify a judge based on an association with a minority community wrongfully impugns not
5 only the judge but also the independence of the judiciary and the fairness of our judicial system.
6 The Motion, which is based only on the “presumption” that former Chief Judge Walker is or
7 appears to be biased because he is gay—as expressed through his relationship with another
8 man—should be rejected for the same reasons.
9 The Motion is in some respects even more pernicious than these past efforts to disqualify
10 judges. The Motion not only demeans Chief Judge Walker and the judicial process, but it also
11 would impose unique and highly invasive disclosure requirements on the most intimate details of
12 gay and lesbian judges’ lives. No judges—regardless of their sexual orientation—should be
13 required to disclose their sexual orientation or intimate details of their private lives or to
14 “disavow” exercising their civil rights as a predicate to presiding over a case.
15 ARGUMENT
16 Proponents assert that Chief Judge Walker’s sexual orientation—reflected through his
17 long-term relationship with another man—raises concerns about Chief Judge Walker’s actual or
18 perceived bias. These concerns, Proponents contend, are so severe that the trial judgment must be
19 vacated because they “presume” that Chief Judge Walker had an interest “that could be
20 substantially affected by the outcome of the proceeding,” 28 U.S.C. § 455(b)(4), or because Chief
21 Judge Walker’s “impartiality might reasonably be questioned,” id. § 455(a). Proponents’
22 assertions are as baseless as they are offensive. Chief Judge Walker’s sexual orientation and
23 relationship status were irrelevant to his ability to oversee the trial fairly. A judge’s affiliation
24 with a minority group has no bearing on the judge’s ability to hear a civil rights case. Amici
25 Curiae urge the Court to reject Petitioners’ arguments and to deny the Motion.
26
27
28
2
1 I. COURTS HAVE UNIFORMLY REJECTED CHALLENGES BASED ON

JUDGES’ AFFILIATIONS WITH MINORITY COMMUNITIES
2
3 As courts facing challenges based on a judge’s race, religion, gender or political affiliation
4 have uniformly recognized, neither a judge’s innate characteristics nor his or her means of
5 expressing them provide a proper basis for recusal. Whether the requests for recusal are made
6 baldly or through pretext, judicial bias cannot be presumed based on a judge’s personal
7 characteristics or the ways in which they are expressed.
8 A. Courts Have Uniformly Rejected Demands For Recusal Based Directly On A

Judge’s Race, Religion, And/Or Gender
9
10 Some litigants have been so bold as to assert that a judge’s race, religion or gender alone
11 is cause for disqualification. Because such assertions are baseless, they have been uniformly and
12 forcefully rejected as proper bases for recusal under 28 U.S.C. § 455(b). In MacDraw, Inc. v. CIT
13 Group Equipment Financing, 138 F.3d 33 (2d Cir. 1998), counsel sought the recusal of then-
14 United States District Judge Denny Chin, arguing that his Asian-American racial and ethnic
15 heritage and prior affiliation with the Asian-American bar reflected a presumptive bias. 138 F.3d
16 at 36-37. Judge Chin denied the recusal request and sanctioned the moving party’s attorneys,
17 rulings emphatically affirmed by the Second Circuit:
18 A suggestion that a judge cannot administer the law fairly because

of the judge’s racial and ethnic heritage is extremely serious and
19 should not be made without a factual foundation going well beyond
the judge’s membership in a particular racial or ethnic group. Such
20 an accusation is a charge that the judge is racially or ethnically
biased and is violating the judge’s oath of office.
21
22 Id. at 37. See also Day v. Apoliona, 451 F. Supp. 2d 1133, 1138 (D. Haw. 2006) (“Recusal based
23 solely on race is unwarranted and improper.”), rev’d in part on other grounds, 496 F.3d 1027 (9th
24 Cir. 2007). Similarly, in United States v. Alabama, 828 F.2d 1532 (11th Cir. 1987) (superseded
25 by statute on other grounds), the Eleventh Circuit forcefully rejected the assertion that an African-
26 American judge should have been disqualified from hearing a lawsuit brought to end the
27 continued segregation of Alabama’s colleges and universities:
28
3
1 To disqualify minority judges from major civil rights litigation

solely because of their minority status is intolerable. This court
2 cannot and will not countenance such a result. The recusal statutes
do not contemplate such a double standard for minority judges.
3 The fact that an individual belongs to a minority does not render
one biased or prejudiced, or raise doubts about one’s impartiality[.]
4
5 828 F.2d at 1542. This was true even though the judge and his children were members of the
6 class bringing the challenge and could have taken advantage of a favorable outcome. See also In
7 re City of Houston, 745 F.2d 925, 929-30 (5th Cir. 1984); Vietnamese Fishermen’s Ass’n v. The
8 Knights of the Ku Klux Klan, 518 F. Supp. 1017, 1019-21 (S.D. Tex. 1981) (denying motion
9 brought by members of the Ku Klux Klan seeking recusal of an African-American district judge).
10 In United States v. Nelson, 2010 U.S. Dist. LEXIS 63814 (E.D.N.Y. June 28, 2010), a
11 criminal defendant charged with targeting a victim because he was an Orthodox Jew moved for
12 the recusal of the district court judge, who was also an Orthodox Jew. The court denied the
13 motion, noting that there is no statutory or other basis upon which to infer the bias claimed by the
14 defendant:
15 If Congress had enacted a statute disqualifying judges from sitting

on certain cases because of their religious beliefs or because one of
16 their co-religionists had some involvement or interest in the
outcome of the case, there is no doubt that such a statute would be
17 struck down. The defendant’s efforts to invoke an act of Congress
to achieve such a result is equally unacceptable.
18
19 2010 U.S. Dist. LEXIS 63814, at *7. Similarly, in Feminist Women’s Health Center v. Codispoti,
20 69 F.3d 399 (9th Cir. 1995), Ninth Circuit Judge John T. Noonan, Jr. refused to disqualify himself
21 from an abortion-related case on the basis of his Catholic faith. 69 F.3d at 400. After the Ninth
22 Circuit reversed in part and vacated in part an abortion clinic’s civil RICO judgment against
23 protestors, the clinic renewed its motion to disqualify Judge Noonan based on his “fervently-held
24 religious beliefs. . . .” Id. Judge Noonan flatly rejected the clinic’s assertion that “incapacitating
25 prejudice” should be presumed based on his Catholicism, noting that the clinic’s argument would
26 “qualify the office of federal judge with a proviso: no judge with religious beliefs condemning
27 abortion may function in abortion cases.” Id. at 401.
28
4
1 As with race- and religion-based challenges, courts have likewise rejected challenges
2 based on a judge’s gender. In Blank v. Sullivan & Cromwell, 418 F. Supp. 1 (S.D.N.Y. 1975), a
3 class of female attorneys filed a gender discrimination lawsuit against a number of New York law
4 firms. Some defendants moved for the recusal of district court Judge Constance Baker Motley
5 because she “strongly identified with those who suffered discrimination in employment based on
6 sex or race.” 418 F. Supp. at 4 (internal quotation marks omitted). Judge Motley rejected the
7 assertion that her gender, race, or background were proper bases for recusal: “[i]f background or
8 sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this
9 court could hear this case, or many others, by virtue of the fact that all of them were attorneys, of
10 a sex, often with distinguished law firm or other public service backgrounds.” Id.
11 B. Courts Have Uniformly Rejected Recusal Demands That Serve As Proxies
For Characteristics Such As Race And Religion
12
13 Other parties seeking judges’ recusal based on affiliations with minority communities
14 have attempted a more subtle approach, couching their recusal demands in some proxy for race,
15 religion or gender. Courts have uniformly seen through these pretexts, denying the requested
16 recusals. In Pennsylvania v. Local Union 542, International Union of Operating Engineers, 388
17 F. Supp. 155 (E.D. Pa. 1974), Judge A. Leon Higginbotham, Jr., issued a long and thoughtful
18 opinion denying a motion to recuse brought by a predominantly white union, which argued that
19 Judge Higginbotham demonstrated actual bias by delivering a speech to a predominantly African-
20 American association of historians. 388 F. Supp. at 156-58.1 After demonstrating that nothing in
21 his speech was unusual or inflammatory, Judge Higginbotham rejected the assertion that African-
22 American judges should refuse to hear cases involving civil rights:
23 So long as Jewish judges preside over matters where Jewish and
Gentile litigants disagree; so long as Protestant judges preside over
24 matters where Protestants and Catholic litigants disagree; so long as
white judges preside over matters where white and black litigants
25 disagree, I will preside over matters where black and white litigants
disagree.
26
1
As Judge Mukasey noted in United States v. EI-Gabrowny, 844 F. Supp. 955 (S.D.N.Y. 1994),
27 Judge Higginbotham’s “opinion is lengthy; to attempt to summarize it would do a disservice to
both the opinion and its author. Besides, it is worth reading in full for its own sake.” 844 F.
28 Supp. at 962.
5
1 Id. at 181. Similarly, in Paschall v. Mayone, 454 F. Supp. 1289 (S.D.N.Y. 1978), Judge Robert
2 L. Carter denied a motion to recuse himself from a civil rights action brought by an African-
3 American plaintiff, where the defendants argued that Judge Carter’s prior employment with the
4 N.A.A.C.P. and New York Special Commission on Attica constituted actual or reasonably
5 perceived bias. 454 F. Supp. at 1299. “To accept that reasoning would require a judge to
6 disqualify himself in any suit dealing with the General Subject matter with which he dealt in
7 practice prior to ascending the bench.” Id. at 1301. See also LeRoy v. City of Houston, 592 F.
8 Supp. 415, 424 (S.D. Tex. 1984) (African-American district court judge denied motion to recuse
9 in a suit alleging discriminatory hiring and elections by the City of Houston: “The fact that I am
10 black and have been a registered voter is not and should not be sufficient to create an appearance
11 of impropriety.”); Baker v. Detroit, 458 F. Supp. 374, 377 (E.D. Mich. 1978) (Denying motion to
12 recuse: “The conclusion is inescapable that the likely grounds upon which plaintiffs’ motion is
13 based is the fact that I am Black, that Mayor Young is Black, that this action was brought by
14 white policemen seeking to challenge the affirmative action program in the Detroit Police
15 Department, and that, therefore, it is reasonable to infer that I am somehow incapable of presiding
16 over this case in a fair and impartial manner.”)
17 In EI-Gabrowny, one of the defendants charged with conspiring to destroy the World
18 Trade Center in 1993 sought the recusal of Judge Michael Mukasey, asserting that recusal was
19 required both because of Judge Mukasey’s religion and his “Zionist political beliefs.” 844 F.
20 Supp. at 957. Judge Mukasey rejected these accusations, finding them improper bases for
21 recusal: “That someone with an imagination or a motive might hallucinate relevance is not the
22 standard, and therefore cannot provide the basis for decision.” Id. at 962. See also Singer v.
23 Wadman, 745 F.2d 606, 608 (10th Cir. 1984) (affirming denial of motion to recuse on grounds
24 that the district court judge was Mormon and the case allegedly involved “a challenge to the
25 theocratic power structure of Utah”); Idaho v. Freeman, 507 F. Supp. 706, 730-31 (D. Idaho
26 1981) (denying motion to recuse based on district court judge’s membership in and former
27 leadership position in The Church of Jesus Christ of Latter-Day Saints).
28
6
1 In sum, “[i]t is clear that a judge’s color, sex, or religion does not constitute bias in favor
2 of that color, sex or religion.” United States v. Alabama, 582 F. Supp. 1197, 1203 (N.D. Ala.
3 1984) (citations omitted), aff’d 828 F.2d 1532. Sexual orientation is no different.
4 II. LIKE RACE, RELIGION AND GENDER, SEXUAL ORIENTATION AND THE
MANNER IN WHICH IT IS EXPRESSED ARE NOT PROPER BASES FOR
5 RECUSAL
6 Proponents concede that Chief Judge Walker’s sexual orientation, standing alone, is an
7 insufficient basis upon which to force his recusal. (Doc. No. 768 at 5; see also generally Doc.
8 No. 787.) Nonetheless, they contend that he was required to disclose his sexual orientation, his
9 relationship status and his “marriage intention” and to “unequivocally disavow any interest in
10 marrying his partner” in order to demonstrate his impartiality. Because he did not, Petitioners
11 contend “it must be presumed” that Chief Judge Walker was biased against them. (Doc. No. 768
12 at 3.) Proponents’ contentions are baseless. Like a judge’s race, ethnicity, religion, gender—and
13 sexual orientation—Chief Judge Walker’s relationship with another man is irrelevant to his
14 ability to oversee impartially a trial dealing with gay and lesbian civil rights.
15 As an initial matter, Proponents are wrong as a matter of law to contend that this Court
16 should presume that Chief Judge Walker was biased. As this Court has recognized, “[s]ince a
17 federal judge is presumed to be impartial, the party seeking disqualification bears a substantial
18 burden to show that the judge is biased.” Torres v. Chrysler Fin. Co., 2007 WL 3165665, at *1
19 (N.D. Cal. Oct. 25, 2007) (Ware, J.) (citing Reiffin v. Microsoft Corp., 158 F. Supp. 2d 1016,
20 1021-22 (N.D. Cal. 2001) (“The judge is presumed to be qualified, and thus there is a substantial
21 burden upon the moving party to show that such is not the case.”)). Indeed, the same
22 presumption of bias advocated by Proponents has been rejected time and again by the many cases
23 discussed above. See, e.g., United States v. Alabama, 828 F.2d at 1542 (“The fact that an
24 individual belongs to a minority does not render one biased or prejudiced, or raise doubts about
25 one’s impartiality. . . .”). In MacDraw, for example, the Second Circuit affirmed sanctions where
26 a party presumed bias of an Asian-American judge based on the judge’s race and ethnic heritage,
27 involvement with the Asian American Legal Defense Fund and prior presidency of the Asian
28 American Bar Association because the party’s contention amounted to “a charge that the judge is
7
1 [himself] racially or ethnically biased and is violating the judge’s oath of office.” 138 F.3d at 37.
2 Proponents are not even close to satisfying their “substantial burden” of establishing that Chief
3 Judge Walker was biased. Torres, 2007 WL 3165665 at *1; Reiffin, 158 F. Supp. 2d at 1021.
4 At the heart of Proponents’ argument is their assertion that because Chief Judge Walker is
5 gay and in a relationship, he cannot be trusted to rule fairly on the merits of the case. Proponents
6 try to argue that they express only the concerns that a reasonable individual would possess. They
7 are incorrect. As courts have established in denying past efforts to mask bias behind similar
8 pretexts, a challenge directed at an intrinsic aspect of a group’s member is an impermissible
9 challenge directed at the group as a whole. See, e.g., Local Union 542, 388 F. Supp. 155, 156-
10 158 (African-American judge’s prior speeches to African-American groups not grounds for
11 recusal in civil rights litigation); El-Gabrowny, 844 F. Supp. 955, 959-962 (Jewish judge’s family
12 members’ relationships with State of Israel and connections to political Zionism not a basis for
13 recusal in terrorist trial); Vietnamese Fishermen’s Assn., 518 F. Supp. 1017, 1018 (African-
14 American judge’s former job as counsel for the NAACP not basis for recusal in action involving
15 members of the Ku Klux Klan); Blank, 418 F. Supp. 1. 2-5 (female judge who had previously
16 worked in civil rights not required to recuse from case involving gender discrimination). As
17 Judge Mukasey stated, Proponents’ “objection here is not based on race or sex or the Mormon
18 religion, but the motion in this case is in all relevant ways the same as the motion in these cases; it
19 is the same rancid wine in a different bottle.” El-Gabrowny, 844 F. Supp. at 962.
20 In addition to the lack of any legal basis, the intimate disclosures demanded by Proponents
21 ask too much of judges, as analogous situations demonstrate. Judges are not required to disclose
22 marital problems or the circumstances surrounding a divorce prior to hearing a constitutional
23 challenge to the Family Code. Immigration judges do not disclose their family’s immigration
24 history so the parties can decide whether or not to seek recusal. Transgender judges are not asked
25 to disclose the sex they were assigned at birth as a requirement for presiding over a sexual
26 harassment suit. The precedent Proponents seek to establish would subvert the presumption of
27 impartiality and make every aspect of a judge’s personal life fair game for questioning. This is
28 not what is required by 28 U.S.C. § 455(b) and should not be accepted here.
8
1 Finally, there is also no basis for Proponents’ demand that Chief Judge Walker was
2 required to “disavow” marriage in order to oversee trial in this matter. Judge Higginbotham
3 rejected the assertion that to remain impartial he would be required to “disavow” an interest in his
4 African-American heritage:
5 [B]y the subtle tone of their objection, [movants] demonstrate either
that they want black judges to be robots who are totally isolated
6 from their racial heritage and unconcerned about it, or, more
probably, that the impartiality of a black judge can be assured only
7 if he disavows, or does not discuss, the legitimacy of blacks’
aspirations to full and first class citizenship in their own native
8 land.
9 Local Union 542, 388 F. Supp. at 178. Similarly, in United States v. Alabama, the Eleventh
10 Circuit did not require Judge Clemon to “disavow” that his children would ever attend public
11 colleges in Alabama, 828 F.2d at 1541-42, nor did the Fifth Circuit require Judge McDonald to
12 “disavow” any intention to vote in municipal elections in order to preside over a challenge to
13 Houston’s system for electing city council members, City of Houston, 745 F.2d at 929-31.
14 Whether or not in a committed relationship, whether or not hoping to marry some day, all
15 judges, all Americans, clearly have an interest in having the freedom to marry—the right to
16 decide for themselves rather than be precluded by a government bar; that is not the kind of
17 interest that triggers judicial disqualification, for then what judge would be qualified to sit?
18 Proponents have shown nothing to suggest that Judge Walker’s familial status makes that general
19 interest into the kind of more than speculative, concrete interest that disqualifies. Any interest
20 Chief Judge Walker may have in the litigation is far too speculative to give rise to a conflict.
21 “‘[A]n interest which a judge has in common with many others in a public matter is not sufficient
22 to disqualify him.’” United States v. Alabama, 828 F.2d at 1541 (quoting In re City of Houston,
23 745 F.2d at 929-30); City of Houston, 745 F.2d at 926 (affirming district judge’s decision
24 declining to recuse even though judge was member of a voting rights class). Like the judges in
25 United States v. Alabama and City of Houston, any potential benefit Chief Judge Walker might
26 possibly receive from the ruling is far too nebulous or general to give rise to a conflict requiring
27 his recusal or justifying vacating his judgment.
28
9
1 CONCLUSION
2 Despite their arguments to the contrary, Proponents’ Motion is grounded in the offensive
3 and absurd assumption that gay and lesbian judges are unable to separate their personal interests
4 from their ability to decide cases based on the law and facts presented to them. Proponents argue
5 that gay and lesbian judges cannot fairly decide a case relating to their civil rights without
6 expressly identifying themselves as gay or lesbian, describing their relationship status and the
7 intimate aspirations they share with their partners, and then disavowing their rights. Proponents
8 cite no authority requiring such intrusive, derogatory disclosures. In fact, courts have time and
9 again affirmed that a judge affiliated with a minority community can indeed remain impartial and
10 fairly preside over cases that involve that particular minority community. Proponents’ Motion
11 should be denied.
12
13 DATED: May 25, 2011 PERKINS COIE LLP
14
By: /s/ Joren S. Bass
15 Joren S. Bass
16
Attorneys for Amici Curiae
17 Bay Area Lawyers for Individual Freedom,
et al.
18
19
20
21
22
23
24
25
26
27
28 77476-0001/LEGAL20910631
10

[email protected]
[email protected]
[email protected]
4 PERKINS COIE LLP
Telephone: 415.344.7000
6 Facsimile: 415.344.7050
8
12

14 ZARRILLO, [PROPOSED] ORDER GRANTING
MOTION FOR LEAVE TO FILE
15 Plaintiffs, BRIEF OF AMICI CURIAE BAY
AREA LAWYERS FOR
16 v. INDIVIDUAL FREEDOM, ET AL. IN
OPPOSITION TO PROPONENTS’
17 CITY AND COUNTY OF SAN FRANCISCO, MOTION TO VACATE JUDGMENT
18 Plaintiff-Invervenor, Chief Judge James Ware
19 v. Date: June 13, 2011

Time: 9:00 a.m.
20 EDMUND G. BROWN, JR., in his official Location: Courtroom 5, 17th Floor
25 O'CONNELL, in his official capacity as Clerk-
27 Angeles,
28 Defendants,
[PROPOSED] ORDER GRANTING MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE BAY AREA
LAWYERS FOR INDIVIDUAL FREEDOM, ET AL. IN OPPOSITION TO PROPONENTS’ MOTION
1 and
2 PROPOSITION 8 OFFICIAL PROPONENTS
DENNIS HOLLINGSWORTH, GAIL J.
3 KNIGHT, MARTIN F. GUTIERREZ, HAK-
SHING WILLIAM TAM, and MARK A.
4 JANSSON; and PROTECTMARRIAGE.COM –
YES ON 8, A PROJECT OF CALIFORNIA
5 RENEWAL,
6 Defendant-Intervenors.
7
8
[PROPOSED] ORDER GRANTING MOTION FOR LEAVE TO FILE BRIEF OF
9 AMICI CURIAE BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM, ET AL.
IN OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT
10
11 WHEREAS, on May 25, 2011, Bay Area Lawyers for Individual Freedom; AIDS Legal
12 Referral Panel, API Equality – LA, API Equality – Northern California, Asian American Bar
13 Association of the Greater Bay Area, Asian American Institute, Asian American Justice Center,
14 Asian Law Caucus, Asian Pacific American Bar Association of Los Angeles County, Asian
15 Pacific American Bar Association of Silicon Valley, Asian Pacific American Legal Center, Asian
16 Pacific Islander Legal Outreach, Bay Area Association of Muslim Lawyers, The Black Women
17 Lawyers Assn. of Northern California, The California Employment Lawyers Association, The
18 Charles Houston Bar Association, Courage Campaign, Equal Justice Society, Family Equality
19 Council, Fred T. Korematsu Center for Law and Equality, Freedom to Marry, Gay & Lesbian
20 Advocates & Defenders, Impact Fund, Iranian American Bar Association, Korean American Bar
21 Association of Northern California, Korean American Bar Association of Southern California,
22 Law Foundation of Silicon Valley, Lawyers’ Committee for Civil Rights of the San Francisco
23 Bay Area, Lesbian & Gay Lawyers Association of Los Angeles, Marin County Bar Association,
24 Marriage Equality USA, National Asian Pacific American Bar Association, Philippine American
25 Bar Association of Los Angeles, Queen’s Bench Bar Association, Sacramento Lawyers for the
26 Equality of Gays and Lesbians, San Francisco La Raza Lawyers Association, Santa Clara County
27 Bar Association, Santa Clara County Black Lawyers Association, Society of American Law
28 Teachers, Transgender Law Center, Vietnamese American Bar Association of Northern

-1-
1 California, and Women Lawyers of Alameda County filed a motion seeking leave to file a brief of
2 amici curiae in opposition to Proponents’ Motion to Vacate Judgment in the above-captioned
3 matter;
4 NOW, THEREFORE, good cause appearing, the Motion for Leave to File Brief of Amici
5 Curiae Bay Area Lawyers for Individual Freedom, et al. In Opposition to Proponents’ Motion to
6 Vacate Judgment is GRANTED.
7 IT IS SO ORDERED.
8
10 Dated: May ___, 2011

HON. JAMES WARE
11 United States Chief District Judge
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
77476-0001/LEGAL20959003
28
-2-

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Case3:09-cv-02292-JW Document788 Filed05/25/11 Page1 of 18

1 Joren S. Bass, Bar No. 208143

10 UNITED STATES DISTRICT COURT

11 NORTHERN DISTRICT OF CALIFORNIA

13 KRISTIN M. PERRY, SANDRA B. STIER, CASE NO. 09-CV-2292 JW

8 Additional Amici Curiae:

26 Bar Association of Northern California, and Women Lawyers of Alameda County.

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

3 By: /s/ Joren S. Bass

5 Attorneys for Amici Curiae

1 Joren S. Bass, Bar No. 208143

10 UNITED STATES DISTRICT COURT

11 NORTHERN DISTRICT OF CALIFORNIA

13 KRISTIN M. PERRY, SANDRA B. STIER, CASE NO. 09-CV-2292 JW

4 IDENTITY OF AMICI CURIAE................................................................................................... 1

7 I. COURTS HAVE UNIFORMLY REJECTED CHALLENGES BASED ON

10 B. Courts Have Uniformly Rejected Recusal Demands That Serve As Proxies

1 Vietnamese Fishermen’s Ass’n v. The Knights of the Ku Klux Klan,

1 IDENTITY OF AMICI CURIAE

1 I. COURTS HAVE UNIFORMLY REJECTED CHALLENGES BASED ON

7 characteristics or the ways in which they are expressed.

8 A. Courts Have Uniformly Rejected Demands For Recusal Based Directly On A

17 rulings emphatically affirmed by the Second Circuit:

18 A suggestion that a judge cannot administer the law fairly because

27 continued segregation of Alabama’s colleges and universities:

1 To disqualify minority judges from major civil rights litigation

15 If Congress had enacted a statute disqualifying judges from sitting

27 abortion may function in abortion cases.” Id. at 401.

13 DATED: May 25, 2011 PERKINS COIE LLP

1 Joren S. Bass, Bar No. 208143

10 UNITED STATES DISTRICT COURT

11 NORTHERN DISTRICT OF CALIFORNIA

13 KRISTIN M. PERRY, SANDRA B. STIER, CASE NO. 09-CV-2292 JW

18 Plaintiff-Invervenor, Chief Judge James Ware

19 v. Date: June 13, 2011

21 Association of Northern California, Korean American Bar Association of Southern California,

28 Teachers, Transgender Law Center, Vietnamese American Bar Association of Northern

10 Dated: May ___, 2011

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