California Same-Sex Marriage Opponents Say Gay Judge Erred in Taking Case

Backers of California’s Proposition 8 ban on gay marriage are seeking to throw out a federal judge’s decision to strike down the voter-backed initiative, saying the judge, who recently disclosed that he’s gay, should have disqualified himself from the case.

Former U.S. District Judge Vaughn Walker’s failure to recuse himself from a 2009 lawsuit challenging the constitutionality of California’s gay marriage ban was a violation of federal law requiring judges to remove themselves whenever they have an interest that could be substantially affected by the outcome of a case, Charles Cooper, an attorney for a group supporting Proposition 8, said in a filing today in federal court in San Francisco.

Walker, who announced his retirement from the bench last year and is now in private practice, said April 6 that he has been in a 10-year relationship with another man. He said he never considered his sexual orientation as a reason to remove himself from the Proposition 8 case.

“I didn’t think it was relevant and no party asked me to,” Walker said in a meeting that day with reporters. “It would not be a positive development if a judge’s sexuality, national origin or gender was pertinent to handling a case. That would be a slippery slope.”

Walker ruled Aug. 4 that Proposition 8, the constitutional amendment passed by 52 percent of voters in 2008, violated equal protection rights and “does nothing more than enshrine in the California constitution the notion that opposite-sex couples are superior to same-sex couples.”

Raises Questions

Cooper said Walker never disclosed his sexual orientation during the case or whether he and his partner had an interest in marrying. That raises questions about his impartiality and requires his ruling in the Proposition 8 case be set aside, according to the filing. A challenge to Walker’s ruling is pending in an appeals court in San Francisco.

“The pall cast by the palpable appearance of judicial partiality upon one of the most prominent and widely publicized constitutional cases in this country’s history threatens deep and lasting harm to the public’s confidence in our nation’s judicial system,” Cooper said in the filing.

The request to vacate Walker’s ruling was made to U.S. District Judge James Ware, who now presides over the case.

Walker declined today to comment on the filing.

Walker joined the federal bench in 1990 after he was nominated by president George H.W. Bush, a Republican, and served as chief judge of the Northern California district court starting in 2004.

The case is Perry v. Schwarzenegger, 3:09-cv-02292, U.S. District Court, Northern District of California (San Francisco).

To contact the reporters on this story: Karen Gullo in San Francisco at kgullo@bloomberg.net; Pamela MacLean in federal court in Oakland at pmaclean@pacbell.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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