Gay judge’s relationship is called key to ruling in Calif.

Marriage ban’s backers say he stood to benefit

Proposition 8 plaintiffs Paul Katami (left) and Jeff Zarrillo spoke to the media after yesterday’s hearing in San Francisco. Proposition 8 plaintiffs Paul Katami (left) and Jeff Zarrillo spoke to the media after yesterday’s hearing in San Francisco. (Jeff Chiu/ Associated Press)
By Lisa Leff
Associated Press / June 14, 2011

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SAN FRANCISCO — A federal judge’s long-term relationship with another man was the subject of an unprecedented court hearing yesterday that featured sharp exchanges about whether the now-retired jurist had a duty to divulge whether he wanted to marry his own gay partner before he struck down California’s same-sex marriage ban.

Lawyers for backers of the voter-approved ban asked Chief US District Judge James Ware to vacate a decision issued by his predecessor last year that declared Proposition 8 an unconstitutional violation of gay Californians’ civil rights.

They maintained that the former chief judge, Vaughn Walker, should have recused himself or disclosed his relationship because he and his partner stood to personally benefit from the verdict.

“It now appears that Judge Walker, at the time the complaint was filed and throughout this litigation, occupied precisely those same shoes as the plaintiffs,’’ attorney Charles Cooper said.

Ware sharply questioned Cooper on why he assumed Walker had any intention of getting married just because he was in a long relationship.

If the judge did not wish to marry, Ware suggested, his situation would have been different from the two same-sex couples who successfully sued to overturn the ban in Walker’s court.

“I’m asking you to tell me what fact you would have the court rely on to suggest that Judge Walker wanted to change, not maintain his relationship?’’ Ware asked.

The mere fact that Walker had a serious relationship “does not put him in the shoes of what the plaintiffs were doing, unless you cite to me some facts that he was desirous of the relief they were seeking,’’ Ware said.

Theodore Boutrous Jr., part of the legal team representing the gay couples, called the effort to disqualify Walker “frivolous, offensive, and deeply unfortunate.’’ He derided Cooper’s assertion that it was Walker’s relationship status, not his sexual orientation, that called his impartiality into question.

“It’s not some news flash that Judge Walker was in a same-sex relationship,’’ Boutrous said. “They are targeting Judge Walker because he is gay.’’

Ware revealed at the hearing’s outset that he had presided at a same-sex marriage during the brief period in 2008 when the ceremonies were legal in the state.

He said he planned to issue a written ruling by the end of the day today. He said the matter raised important questions and called it the first case in which a judge’s same-sex relationship had led to calls for disqualification.

“There was probably the same kind of struggle when race or gender were the issue,’’ Ware said.

Walker publicly revealed after he stepped down in February that he is in a 10-year relationship with a same-sex partner. Rumors that he was gay had circulated before and after he presided over the trial in early 2010.

Many legal scholars have said they do not expect Ware to overturn Walker’s decision. They point out that while having a judge’s impartiality 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.

Ware also heard arguments on whether he should prohibit Walker from using videotaped recordings of the trial in public speeches. Cooper said that Walker’s postretirement use of the recordings violated a Supreme Court ruling barring the trial from being broadcast beyond the federal courthouse in San Francisco.

Lawyers for news media and for the gay couples that sued to overturn the ban are asking Ware to make those recordings public.

Ware said he would issue a written ruling at a later date. top stories on Twitter

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