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Court to decide whether Prop. 8 judge's relationship should wipe out gay marriage ruling

June 13, 2011 |  7:45 am

Judge Vaughn R. Walker.

A federal district judge in San Francisco has scheduled a hearing Monday over whether the retired federal judge who struck down California's ban on same-sex marriage should have his ruling wiped from the legal record because of his relationship with a man.

Gay marriage critics argue Vaughn R. Walker, 67, should have disclosed his 10-year relationship with his partner before presiding over the challenge to Proposition 8, the 2008 California ballot measure that reinstated a ban on same-sex marriage. Walker ruled in August that the ban was unconstitutional, and his decision is now before an appeals court.

Legal scholars interviewed by the Los Angeles Times last month predict that the effort by Proposition 8 sponsor ProtectMarriage will fail.

New York University Law School professor Stephen Gillers said that as long as Walker did not wish to marry his partner in California, there was no reason to disqualify him from the case. But Gillers said Walker should have disclosed his situation before trial.

"A judge should always disclose facts that are not publicly available, as in public financial disclosure filings, to give the parties a chance to seek recusal," Gillers said.

He cited an American Bar Assn. model of conduct that says a judge should disclose information that the litigants or their lawyers "might consider relevant to a possible motion of disqualification, even if the judge believes there is no basis for disqualification."

Other experts said federal law required no such disclosure.

"I don't think he needed to disclose that any more than a non-gay judge would," said Northwestern University Law professor Steven Lubet, who wrote a book on judicial conduct and ethics.


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Photo: Judge Vaughn R. Walker. Credit: Associated Press