Judge challenged on same-sex ruling

SAN JOSE, Calif. – Backers of California’s same-sex marriage ban on Monday moved to wipe out last year’s ruling that declared Proposition 8 unconstitutional, saying the federal judge who heard the historic case should have stepped aside because he has been in a long-term same-sex relationship.

In court papers, the Proposition 8 campaign argues that former Chief U.S. District Judge Vaughn Walker had a presumed bias in the case because he could have benefited from gaining the legal right to marry his partner. Walker has never concealed the fact he is gay and it has been well-known in Bay Area legal circles, but he never discussed the issue publicly until a meeting with reporters last month in his San Francisco office before he left the bench.

Walker could not be reached for comment Monday. But he told reporters at his public session that he never considered recusing himself from the case, saying his sexual orientation should not be a factor in presiding over the legal challenge to the gay marriage ban.

Gay marriage advocates quickly dismissed the legal tactic as an act of desperation, while legal experts labeled the move a long-shot that came too late and is no different than trying to bump a female judge off a gender discrimination case or a black judge from a racial bias lawsuit.

The 67-year-old Walker retired earlier this year and is moving into private law practice and a teaching position at the Boalt Hall School of Law. Last summer, Walker struck down Proposition 8, concluding that it violates the federal equal protection rights of California’s same-sex couples.

The ruling is on appeal in both the 9th U.S. Circuit Court of Appeals and California Supreme Court, which is currently considering whether Proposition 8 supporters even have a legal right to defend the law when the state’s top officials refuse to do.

Proposition 8 supporters are specifically arguing that Walker’s acknowledged long-term relationship with a doctor should have been disclosed before the January 2010 trial because it would suggest he may have a personal interest in the right to marry. In court papers, lawyers for gay marriage foes say Walker’s rulings throughout the case were rife with bias, suggesting he did not treat the legal arguments equally.

“Judge Walker’s 10-year-long same-sex relationship creates the unavoidable impression that he was not the impartial judge the law requires,” said Andrew Pugno, general counsel for the Proposition 8 sponsors.

In court papers, Proposition 8 lawyers argue that Walker, because he could have at any point decided he wanted to marry a same-sex partner, “had a clear and direct stake” in the outcome of the legal battle. “Such a personal interest in his own marriage would place Chief Judge Walker in precisely the same shoes as the two couples who brought the case,” Proposition 8 lawyers wrote.

The issue will first be considered in July by Walker’s replacement, Chief Judge James Ware, who has inherited further proceedings in the Proposition 8 case. But legal experts immediately cast doubt on the validity of the Proposition 8 campaign’s legal arguments.

“It frankly sounds like an act of desperation,” said Rory Little, a Hastings College of the Law professor. “Their position is shot through with illogical jumps.” Among other things, Little called it “disingenuous” for Proposition 8 supporters to portray Walker’s sexual orientation as a “newly-discovered fact.” “They’ve obviously known Judge Walker was gay,” he said.