The sponsors of California’s gay marriage ban renewed their effort Thursday to disqualify a federal judge because of his same-sex relationship – the first time an American jurist's sexual orientation has been cited as grounds for overturning a court decision.
Lawyers for a coalition of religious conservative groups met a skeptical audience Thursday in the three-judge panel from the 9th U.S. Circuit Court of Appeals as they argued that now-retired Chief U.S. District Judge Vaughn Walker should have revealed that he had a long-term male partner.
The appeals court did not immediately rule on the matter.
He should have stated whether he had any interest in getting married before he presided over a January 2010 trial on the measure's constitutionality, the coalition’s lawyers said.
Walker's impartiality stands in doubt and the decision he ultimately made to strike down Proposition 8 as a violation of gay Californians' civil rights must be reversed, said Charles Cooper, an attorney for the ban's backer.
``In May 2009, when Judge Walker read the allegations of the complaint, he knew something the litigants and the public did not know: He knew that he, too, like the plaintiffs, was a gay resident California who was involved in a long-term serious relationship with an individual of the same sex,'' Cooper said. ``The litigants did not have any knowledge of these facts, and it appears that Judge Walker made the deliberate decision not to disclose these facts.''
Judge R. Randy Smith, who represents Idaho on the 9th Circuit, interrupted to forcefully ask why a gay judge would be any more obligated to divulge his relationship status and views on matrimony than would a married straight judge who opposes same-sex marriage.
``So a married judge could never hear a divorce?'' Smith asked.
``Your honor, I don't see the difficulty with a married judge hearing a divorce action,'' Cooper answered.
Walker publicly revealed after he retired in February that he is in a 10-year relationship with a man.
In an earlier ruling, Chief U.S. District Judge James Ware said Vaughn Walker did not have to divulge whether he wanted to marry his own gay partner before he declared Prop 8 unconstitutional.
In an interview last April, Walker said he saw no reason to step down from the case because he was gay.
"I don't think it's relevant. I never thought it was appropriate to recuse myself from that case," Walker said. "It would not be a positive development if you thought a judge's sexuality, ethnicity, national origin or gender would prevent a judge from handling a case."
Proposition 8 passed in the November 2008 state elections, adding a new provision to the California Constitution, which provides that "only marriage between a man and a woman is valid or recognized in California.