Same-Sex Marriage Foes Seek Reversal of Ruling by Gay Judge

Same-sex marriage foes in California asked a federal appeals court today to throw out a judge’s ruling that struck down the state’s gay marriage ban because he didn’t disclose that he was gay and in a long-term relationship.

Former U.S. District Judge Vaughn Walker, now retired from the bench, should have disqualified himself from a San Francisco trial over whether the voter-approved measure outlawing same-sex weddings is discriminatory because he had an interest in its outcome, lawyers for the measure’s supporters said in court filings. A different federal judge in June refused to toss Walker’s ruling. Today, a three-judge panel heard an appeal in San Francisco.

The attempt to set aside Walker’s ruling is the latest twist in a seven-year battle between advocates and opponents of gay marriage over legalizing same-sex weddings in the U.S. state with the largest number of gay couples. San Francisco allowed gay weddings in 2004; the practice was halted by the California Supreme Court, which later legalized the nuptials. Opponents put Proposition 8 on the 2008 ballot to enact a ban; the measure was passed by 52 percent of voters, and was struck down last year by Walker.

A ruling for Proposition 8 proponents could lead to a new trial over whether it discriminates against gays and lesbians. A ruling in favor of gay couples and the city of San Francisco, who are defending Walker’s participation in the case, could trigger another appeal.

‘Not Free’

“The judge is not free to both sit on the case and keep silent,” said Charles Cooper, an attorney for Proposition 8 proponents, in a court filing. “Judge Walker, we respectfully submit, was not faithful to his obligation” to disclose any fact that could raise questions about his impartiality.|

“There is no case that says a judge who is a minority, because he is in a minority, can sit on his own case,” Cooper told the three-judge panel today. Were the appeals court to agree with the lower court, “this will be a singular and dark day in American jurisprudence,” Cooper said.

Walker presided over the nation’s first federal trial over whether it is legal to ban marriage by people of the same sex. In August 2010, the judge ruled without a jury that gay couples demonstrated by “overwhelming evidence” that Proposition 8 violates constitutional equal protection rights.

Walker’s ruling has been on hold pending the outcome of a separate appeal by Proposition 8 supporters challenging his findings on constitutional issues.

Walker wasn’t obligated to disqualify himself from the case because he didn’t have a personal connection to the plaintiffs or a financial interest in the lawsuit’s outcome, said Theodore Olson, an attorney for gay couples suing to overturn Proposition 8.

Gay Couples

David Boies, another attorney for gay couples, told the appeals panel today Proposition 8 proponents claim that non-gay judges wouldn’t be required to disclose whether they have an interest in maintaining marriage as an institution for heterosexuals. Yet gay or lesbian judges would have to disclose whether they might have a future interest in taking advantage of the legalization of same-sex nuptials, a right that would be available to all members of the gay community, he said.

“Consider what the implications of that rule are,” Boies said. “Consider how disruptive it might be and how corrosive it might be.”

The lawyer said this is why courts have determined that judges who have the same potential interest in the outcome of a trial that many other people do aren’t obligated to to disclose their intentions or face disqualification.

Former Chief Judge

Walker, the former chief judge of the district court in San Francisco, retired in February and disclosed in April to reporters that he had been in a 10-year relationship with a man. He said he never considered removing himself from the case.

“I didn’t think it was relevant and no party asked me to,” Walker told 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.”

In June, U.S. District Judge James Ware in San Francisco refused to throw out Walker’s ruling, saying that presuming Walker couldn’t make an impartial decision “is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief.”

Videotape of Trial

Proposition 8 proponents will also ask the appeals court to overturn Ware’s ruling that a videotape of the trial can be made public, saying it violates local court rules prohibiting broadcasts of public trials, disobeys a U.S. Supreme Court decision that public broadcasting of the trial was inappropriate and puts witnesses at risk of being harassed.

Ware ruled after Walker used parts of the trial recording in connection with his teaching and public speaking.

Circuit Judge Michael Hawkins said during today’s hearing that just two witnesses testified for Proposition 8 proponents, one of whom went on TV to express his views and the other of whom testified only about the political power of gays.

“It’s not like he is going to be harassed or strung up,” Hawkins said.

Hawkins said Walker told the parties that the taping of the trial was to help him decide the case. Walker said the recording would be placed in the court record under seal and never said that after the trial ended it could be made public, according to Hawkins.

“Can promises of the court just be disregarded?” Hawkins said. “The word of the court is supposed to mean something.”

The appeals court is expected to rule on both matters at a later date.

As of 2006, there were an estimated 109,000 gay couples in California, more than any other state, according to U.S. Census data compiled by the University of California, Los Angeles.

The cases are Perry v. Brown, 11-17255 and 11-16577, U.S. Court of Appeals for the Ninth Circuit, San Francisco.

To contact the reporter on this story: Karen Gullo in San Francisco at kgullo@bloomberg.net

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

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