Lawyers target CA gay marriage ruling by gay judge
Jun 13, 2:19 PM (ET)
By LISA LEFF
SAN FRANCISCO (AP) - A retired federal judge's long-term relationship with another man was the subject of an unusual and possibly unprecedented court hearing that began Monday involving California's same-sex marriage ban.
Lawyers for the sponsors of the voter-approved ban asked the chief federal judge in San Francisco to vacate a decision issued by his predecessor last year that declared Proposition 8 an unconstitutional violation of gay Californians' civil rights.
They maintain that former Chief Judge Vaughn Walker should have recused himself or disclosed his relationship status before trial because he and his partner stood to personally benefit from Walker's verdict.
Attorneys for both sides were presenting arguments on that question to Chief U.S. Judge James Ware, who could rule from the bench or at a later time.
Ted Olson, one of the lawyers for the two same-sex couples who successfully sued to overturn the measure, said he was unaware of any other cases in which a ruling was challenged because of the issuing judge's sexual orientation. He called the move to disqualify Walker frivolous and demeaning and said that expecting judges to reveal parts of their personal lives when hearing gay rights cases would set a dangerous precedent.
"What would a judge do who was Mormon knowing the Mormon Church took such an active role" in campaigning for Proposition 8, Olson asked. "What would a judge who had a nephew or niece or son or daughter who was gay or lesbian do? We have an unlimited number of permutations of what a judge might be asked to disclose."
Many legal scholars have said they do not expect Ware to overturn Walker's decision. They point out that while having a judge's impartiality questioned because he is gay is new territory, efforts to get women judges thrown off gender discrimination cases or Hispanic judges removed from immigration cases have failed.
Nonetheless, in a fundraising appeal to Proposition 8 supporters Friday, Ron Prentice, chairman of the religious coalition that qualified the gay marriage ban for the November 2008 ballot, said, "We are much more hopeful for success with a judge presiding over the case who has greater respect for legal precedent and the rule of law."
Ware also heard arguments on whether he should prohibit Walker from using videotaped recordings of the trial in public speeches. Charles Cooper, a lawyer for the ban's backers, said that Walker's post-retirement use of the recordings violated a U.S. Supreme Court ruling barring the trial from being broadcast beyond the federal courthouse in San Francisco.
Lawyers for the gay couples that sued to overturn Proposition 8 and for the news media are asking Ware to now make those recordings public.
Ware said he would issue a written ruling at a later date but suggested he was disinclined to prevent his former colleague from making personal use of the videos.
Ware said Walker had been given the videos as a parting gift during a "passing the gavel" ceremony.
"It was done under my auspices. Technologists of the court presented him with a copy of the videotape for his personal possession, so I want to disclose that in case you wish to make an argument that somehow having presided over that event ... I should recuse myself," he said.
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