UPDATE 1:44 p.m. Circuit Judge Stephen Reinhardt on Thursday refused to step aside from the Ninth Circuit Court panel that will hear the Prop. 8 case next Monday. He insisted he could and would be impartial. The judge said he would file a memorandum later to explain his decision. Those who challenged Judge Reinhardt have decided not to pursue the matter further. (The following was posted Wednesday night.)

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Backers of California’s Proposition 8 ban on same-sex marriage formally asked one of the three Ninth Circuit judges scheduled to hear the constitutional challenge to the ban to take himself off the case, arguing that his wife has been actively involved as a foe of the measure. In a motion for disqualification, the supporters of the ban called for recusal of Circuit Judge Stephen R. Reinhardt.

Judge Reinhardt’s spouse is Ramona Ripston, executive director of the American Civil Liberies Union’s Southern California affiliate. “Under Ms. Ripston’s leadership,” the motion said, her organization has taken a lead role “in what it calls ‘the fight to end marriage discrimination’ in California.” The chapter also has “taken an acive role in this litigation,” it added.

Relying on the federal recusal law, the Proposition 8 backers said that a judge must “disqualilfy himself in any proceeding in which his impartiality might reasonably be questioned.” It argued:” The facts of this case would plainly lead a reasonable person to conclude that Judge Reinhardt’s impartiality might reasonably be questioned.” Even if the ACLU/SC is not a direct party in the case, it added, the lawyers for the challengers to Proposition 8 consulted with her before filing the lawsuit. amd the affiliate has been involved in other ways.

It noted that Judge Reinhardt had previously taken himself out of cases in which ACLU/SC was involved. It is up to the judge individually to decide whether to disqualify himself from the Proposition 8 case.

The three-judge panel is scheduled to hold a hearing at 10 a.m. Pacific time next Monday on the constitutionality of Proposition 8. Also on the panel are Circuit Judges Michael Daly Hawkins and N. Randy Smith. The hearing is scheduled for two hours.

Recommended Citation: Lyle Denniston, Prop. 8: Reinhardt stays on panel (UPDATE), SCOTUSblog (Dec. 2, 2010, 1:44 PM), https://www.scotusblog.com/2010/12/prop-8-circuit-judge-challenged/