California's controversial ban on same-sex marriage is back in court Thursday as proponents argue that the previous judge's decision to strike it down should be invalidated because he is gay.
The U.S. 9th Circuit Court of Appeals is scheduled to hear arguments on whether the decision to strike down Proposition 8 should be overturned because Chief U.S. District Judge Vaughn R. Walker failed recuse himself or disclose he was in a gay relationship.
Walker overturned voter approved Proposition 8 in August of 2010 saying that measure violated the U.S. Constitution's guarantees of due process and equal protection. But lawyers for Prop 8 backers have argued the judge stood to personally benefit from his decision and should have recused himself.
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.
But Prop 8 backers appealed to the U.S. 9th Circuit Court of Appeals who will hear arguments during a two hour hearing Thursday.
The three-judge panel will also hear motions on whether videotapes of the Prop 8 trial should be made public. Walker had his staff record the proceedings, with the assumption they were for his personal archive.
Backers of the ban on same-sex marriage will argue that the tapes should be kept unpublicized, citing a U.S. Supreme Court ruling that banned cameras from broadcasting the trial in the first place.
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.