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Proposition 8 ruling should be voided because gay judge was biased, backers say [Updated]


In another swing at the judge who declared Proposition 8 to be unconstitutional, backers of the measure Monday asked that his decision be voided because he failed to disclose that he was gay and in a long-term relationship.

In a court filing, the sponsors of the ban on gay marriage, ProtectMarriage, asked the chief judge of the federal court in San Francisco to nullify last August's ruling by former U.S. District Chief Judge Vaughn R. Walker, who retired earlier this year.

ProtectMarriage said Walker should have disclosed his involvement with his male partner before presiding over the marriage trial because it constituted a conflict of interest.

Walker earlier this month publicly discussed his sexual orientation, though it was widely known even before last year's trial. During pretrial interviews, The Times asked attorneys for ProtectMarriage whether they would make an issue of Walker's sexual orientation. They declined to comment.

In their legal filing, the lawyers said Walker's public acknowledgment of his long-term relationship provides fuel for overturning his judgment.

[Updated, 4:50 p.m.: "Judge Walker's 10-year-long same-sex relationship creates the unavoidable impression that he was not the impartial judge the law requires," ProtectMarriage argued in the legal filing.

Andy Pugno, a lawyer for ProtectMarriage, said the group was not suggesting that it would be inappropriate for any gay or lesbian judge to sit on the case. "Rather, our motion is all about the fundamental principle that no judge is permitted to try a case where he has an interest in the outcome," Pugno said.

Erwin Chemerinsky, dean of law at UC Irvine and an expert in the federal constitution, said "there is no chance whatsover" that Walker's ruling would be voided because the judge failed to tell the backers of Proposition 8 that he was gay.

"No judge is going to say that another judge has a duty to declare his or her sexual orientation," the law professor said.

He said that would be akin to asking black judges to recuse themselves from race discrimination cases or female judges to remove themselves from litigation involving sex bias.]

ProtectMarriage already has asked the U.S. 9th Circuit Court of Appeals to order Walker to return video recordings of the trial. Walker has used a snippet from the testimony when giving lectures on cameras in the courtroom. ProtectMarriage has argued Walker's use of the video violated promises he made to the backers of the measure and defied the U.S. Supreme Court.


Attorney leaves Atlanta firm after it backs out of DOMA defense

Gay marriage in California won't resume for now, appeals court rules

California Supreme Court refuses to speed up key ruling in gay marriage case

-- Maura Dolan in San Francisco

Photo: Former U.S. District Chief Judge Vaughn R. Walker spoke at a news conference this month in San Francisco. Credit: Beck Diefenbach / Reuters

Comments () | Archives (86)

With their logic then, only an unmarried judge whom neither cares for the protection of the "family" or gay civil rights should be allowed to make the call.

Good luck!

Perhaps only an a-sexual judge would qualify for cases related to marriage?? Where could one find such a judge?

This judge got paid off just like arbitrators get paid off every day.

If it was a heterosexual judge who ruled in their favor, wouldn't that then give the LGBT community the same position to say the judge was biased because he's anti-gay? I am certain Mr. Walker gave clear reasons why he ruled the way he did. ProtectMarriage is just being a sore loser and are afraid to experience the ultimate ruling, that is inevitable.

Kevin55 wrote, "Vaughn Walker stands to personally benefit from his own ruling."

With respect, conservatives have been making the argument that gay couples already HAVE all the rights of marriage-- through civil unions. They have argued consistently that gay couples don't NEED civil marriage because they already HAVE all those rights.

So how does this judge stand to "personally benefit"?

This challenge might have stood if the legal team of ProtectMarriage brought it up AT THE TIME the case was being decided.

Not after the judge has already made his ruling.

You know what...enough already. Lets let everything get married. I am sure my dog would love to marry the neighbor's poodle.

If we can't find a straight or gay judge then how about using the Magic 8 ball to see if gay marriages should be legal....the 8 ball would answer "My sources say No." Then we could argue the sexuality of those who created the eight ball.

I'm guessing they would insist upon a straight appeals judge or likely get one just based on statistics. But if they win appeal then their own logic would require that appeals judge would have to recuse themselves? Which would mean that the appeals decision wouldn’t have been made, so they wouldn’t have to recuse themselves, but then they would make the decision requiring that they recuse themselves...?

Aren't the other judges (who voted against Prop 8) biased because they don't want same-sex marriages to begin with? So...double-standard much???

At Ann Common,
Given the same evidence, NO judge worth his credentials COULD have ruled in favor of Prop. 8 proponents.
un Constitutional is unConstitutional. If you BOTHER to read the transcript of the Judge's ruling, it was sound as a ruling can get. I read it, and the opposition HAD NO CASE, no evidence, no competent witnesses means, NO CASE.

If a fundamentalist Christian judge had ruled in FAVOR given that fact, HE would rightly and could have been accused of bias.
THIS case, there IS no bias. NONE.
And Walker's long record hasn't ALWAYS favored gay related cases. Meaning, he isn't biased at all when it comes to such situations.
There is no justification for damaging the Constitution and making it an instrument of discrimination focused on a specific group. Nor excluding them from the protections guaranteed by the 10th Amendment to that Constitution.
Which is from a tyranny of a minority by a majority. "The people" never had a right to do THAT against gay people. MY copy of the Constitution and Bill of Rights is right here in my desk drawer as a point of reference.
Where's YOURS?

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