Vaughn Walker
Lawyers
for the sponsors of the voter-approved ban are asking the chief federal judge
in San Francisco to vacate the 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 the ban’s backers and for two same-sex
couples who successfully sued to overturn the measure in Walker’s court are scheduled
to present arguments on that question to Chief U.S. Judge James Ware, who could
rule from the bench or at a later date.
Walker publicly revealed after he stepped down in
February after 20 years on the federal bench that he is in a 10-year-old relationship
with a same-sex partner, although rumors that he was gay had circulated both
before and after he presided over the Proposition 8 trial in early 2010.
Ted Olson, one of the couples’ lawyers, said he is
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. They point out that while a having a judge’s impartiality
be 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’s 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 is scheduled to hear arguments on whether he
should unseal videotaped recordings of the trial. The U.S. Supreme Court ruled,
after Walker proposed having the proceedings uploaded on a YouTube channel,
that the trial could not be 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.
The fight to preserve the same-sex marriage ban also
remains before a federal appeals court that is considering whether Walker
properly applied the constitutional principles of due process and equal access
when he overturned Proposition 8.
