- The Washington Times - Friday, December 3, 2010

Judge Stephen R. Reinhardt of the 9th U.S. Circuit Court of Appeals refuses to disqualify himself from a case challenging California’s homosexual “marriage” ban even though his wife has been directly involved in the case. His insistence on serving as one of three judges to consider Perry v. Schwarzenegger is an affront to the rule of law.

The case involves a ban on homosexual “marriages” that was passed by statewide referendum. Federal District Court Judge Vaughn Walker, himself a homosexual, ruled the law unconstitutional, and it now rests on appeal with a three-judge panel which includes Judge Reinhardt. Here’s the problem: Judge Reinhardt’s wife, Ramona Ripston, is executive director of the ACLU of Southern California (ACLUSC) and its foundation. The ACLUSC has been involved at every phase of the battle in California to recognize homosexual unions as marriages.

The ACLUSC campaigned against the ballot initiative in question. It represented plaintiffs in the effort to overturn the act on state-law grounds. The day that attempt failed, Ms. Ripston announced “a renewed effort to overturn” it. She personally participated in what the California Lawyer publication called “confidential discussions” with the leaders preparing the federal lawsuit now at issue. The ACLUSC filed a motion to intervene in the case on behalf of a separate set of would-be plaintiffs. (The motion was denied.) Under Ms. Ripston’s direction, the ACLUSC is serving as counsel for a friend-of-the-court brief in this case.

The Code of Conduct for United States Judges lists among the reasons a judge should recuse himself instances in which “the judge’s spouse … is a party to the proceeding, or an officer, director or trustee of the party, or acting as a lawyer in the proceeding.” The same logic should apply if a spouse is an officer of an organization acting as counsel in the proceeding, as Ms. Ripston is.

Judge Reinhardt’s record shows that he appears to have followed a consistent policy of recusing himself from any cases involving the ACLUSC. On this case, however, he refuses to recuse, promising to “provide in a memorandum to be filed in due course” explanations for his refusal to step aside. That vague promise of a future explanation is cold comfort for those who seek impartial justice, such as the 7 million Californians - a 600,000-vote majority - who voted to defend traditional marriage against redefinition by liberal activists.

Ed Whelan, president of the Ethics and Public Policy Center, wrote in National Review Online that arguments for Judge Reinhardt to be disqualified are “compelling” and “conclusive.” In a motion to disqualify him, lawyers point out that Ms. Ripston’s job description specifically makes her “responsible for all phases of the organization’s programs, including litigation.” Therefore, “the facts of the case would plainly lead a reasonable person to conclude that Judge Reinhardt’s impartiality might reasonably be questioned.” Oral arguments in Perry v. Schwarzenegger are set for today. Judge Reinhardt shouldn’t be in the courtroom.