## Facts

- Same-sex couples and San Francisco sued California officials challenging Proposition 8, a state constitutional amendment limiting marriage to opposite-sex couples.
- After a trial, the district court entered judgment declaring Proposition 8 unconstitutional.
- The official proponents of Proposition 8 appealed to the Ninth Circuit.
- Judge Stephen Reinhardt was assigned to the appellate panel.
- Before merits argument, the proponents moved to disqualify Judge Reinhardt based on his spouse’s position as Executive Director of the ACLU of Southern California and her public advocacy supporting same-sex marriage and opposing Proposition 8.
- The ACLU of Southern California was not a party to the federal appeal, though ACLU entities had participated in earlier, separate California marriage-related litigation.

## Issues

1. Whether Judge Reinhardt’s impartiality might reasonably be questioned under 28 U.S.C. § 455(a) based on his spouse’s public advocacy and leadership of an advocacy organization aligned with one side of the policy dispute.
2. Whether recusal was mandatory under 28 U.S.C. § 455(b)(5)(iii) because the judge’s spouse had an “interest that could be substantially affected” by the outcome of the appeal.

## Decision

- The Ninth Circuit (through Judge Reinhardt addressing the motion) denied the motion to recuse.
- Under § 455(a), a fully informed reasonable person would not reasonably question the judge’s impartiality based solely on a spouse’s views, advocacy, or organizational role.
- Under § 455(b)(5)(iii), the spouse had no qualifying “interest” that could be substantially affected by the appeal because neither she nor her organization had a direct legal stake in the proceeding.

## Legal Principles

- Section 455(a) applies an objective test: whether a reasonable person, aware of all relevant facts, would question the judge’s impartiality.
- A judge is not disqualified merely because a spouse holds and publicly expresses strong views about issues implicated in a case or leads an organization that takes positions on those issues.
- Section 455(b)(5)(iii) requires a concrete interest of the spouse that could be substantially affected by the case’s outcome; ideological alignment, advocacy goals, or generalized institutional preferences are insufficient.
- Nonparty status and participation in earlier, distinct litigation generally do not create a spouse’s disqualifying interest in a later case raising different claims or involving different proceedings.
- Recusal standards should not be applied so broadly that they invite strategic disqualification efforts or treat a spouse’s political activity as attributable to the judge.

## Conclusion

The court held that Judge Reinhardt was not required to recuse because the asserted basis—his spouse’s advocacy and leadership at a nonparty civil liberties organization—did not create an objective appearance of partiality under § 455(a) or a substantially affected spouse’s interest under § 455(b)(5)(iii).


Perry v. Schwarzenegger, 630 F.3d 909 (9th Cir. 2011)