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Appeals court asked to decide if gay judge could be fair on Prop. 8 case

December 8, 2011 |  6:03 pm

Three federal appellate judges appeared deeply skeptical Thursday of claims by backers of Proposition 8 that the judge who found the ban on gay marriage to be unconstitutional should have recused himself because he is gay and might benefit from his own ruling.

The Proposition 8 sponsors challenged U.S. District Judge Vaughn R. Walker's impartiality during a January 2010 trial that led to his ruling seven months later that the ballot measure passed by 52% of California voters three years ago violated gay couples' constitutional rights to due process and equal protection under the law.

Another federal judge in San Francisco, Northern District Chief Judge James Ware, ruled earlier this year that Walker handled the trial fairly and wasn't obliged to disclose either his sexual orientation or that he had been involved in a same-sex relationship for the last decade.

Charles J. Cooper, an attorney for Prop. 8 sponsors ProtectMarriage.com, said Walker's failure to disclose whether he wanted to marry his long-time partner deprived the trial parties of information they could have used to challenge his impartiality in the case. Cooper warned the three-judge panel of the 9th U.S. Circuit Court of Appeals that "this will be a signal and dark day in American jurisprudence" if the court lets Ware's decision stand, which he said essentially let a judge decide his own case.

Attorneys for those who successfully challenged Prop. 8's constitutionality last year told the panel that accepting the sponsors' argument about Walker would suggest that minority judges are incapable of fairly deciding cases in which they might share an interest with a large class of citizens in exercising a constitutional right.

Does a female judge of child-bearing years have to disclose whether she would ever consider having an abortion if she is presented with a case involving reproductive rights, asked Therese Stewart, chief deputy city attorney for San Francisco, which joined the gay couples' challenge of Prop 8.

David Boies, a prominent Washington lawyer representing the two couples whose lawsuit led to Walker's ruling, told the appellate panel that there is no case law obliging a judge to disclose an interest in common with a large segment of society and that any ruling to the contrary would lead to "an intolerable double standard for minority judges."

Judge N. Randy Smith, named to the appeals court by President George W. Bush, challenged the Prop. 8 backers with mocking questions about whether a married judge could handle a divorce case. He drew laughter in the San Francisco courtroom when he asked whether a judge in a divorce matter would have to disclose whether his own relationship was rocky at times.

The challenge to Walker's impartiality was brought by the opponents of same-sex marriage earlier this year, after Walker disclosed upon his retirement from the federal bench that he had been involved in a long-term and serious relationship with a man.

Thursday's hearing followed another Prop. 8 proceeding in which the same three-judge panel heard arguments about whether a video recording of the January 2010 trial can be made public or must be kept under seal. Both cases are likely to be decided in the next few weeks, together with the Proposition 8 sponsors' main challenge to Walker's ruling that their voter initiative unconstitutionally discriminates against gays.

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--Carol J. Williams

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