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Arguments in gay marriage legal battle presented to appeals court

November 2, 2011 |  9:22 am

Retired Chief U.S. District Judge Vaughn R. Walker's failure to disclose whether he intended to marry his same-sex partner before presiding over the Proposition 8 case amounts to misconduct, lawyers opposed to gay marriage told a federal appeals court
A federal judge’s failure to disclose whether he intended to marry his long-term, same-sex partner before presiding over the Proposition 8 case amounts to  misconduct that requires the removal of his ruling against the 2008 ballot measure, lawyers opposed to gay marriage told a federal appeals court.

In written arguments to the U.S. 9th Circuit Court of Appeals, both sides in the gay marriage legal  dispute debated whether the sexual orientation of retired Chief U.S. District Judge Vaughn R. Walker  might have affected the case.

The 9th Circuit, considering the arguments filed over the last few weeks, has put Walker’s ruling on hold pending a decision on whether to uphold or overturn it.

Minority judges have long been permitted to preside over civil rights cases affecting their race or ethnicity, and the dispute over Walker’s sexual orientation is likely to clarify the legal rules for gay and lesbian jurists. Walker is openly gay and his sexual orientation was widely known in San Francisco’s legal community. But he did not publicly discuss it until after retiring from the bench in February.

Walker should have disclosed any interest he may have had in marrying his partner of 10 years or stepped aside when he was randomly chosen to preside over the case, the opponents of gay marriage said.

“Although a judge may choose to avoid disclosure by recusing himself without explanation, he cannot both remain silent and sit in judgment of a case in which a reasonable observer, with knowledge of all of the relevant facts (disclosed or not) would conclude the judge’s impartiality might reasonably be questioned,” ProtectMarriage argued.

Gay rights lawyers countered that judges must  disqualify, or recuse, themselves from hearing cases only when they have a “substantial and individualized interest  in the case, particularly a financial interest, that gives rise to actual bias,” the lawyers for Proposition 8’s challengers said.

“A recusal rule that turns on a minority judge’s subjective desire to enjoy his basic civil rights would effectively disqualify all minority judges,” Proposition 8’s challengers said.

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Photo: Retired Chief U.S. District Judge Vaughn R. Walker. Credit: Beck Diefenbach / Reuters

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