By LISA LEFF
SAN FRANCISCO – The sponsors of California’s voter-approved same-sex marriage ban have asked a federal court to invalidate the ruling of the federal judge who struck it down, saying the judge should be disqualified because he did not divulge he was in a long-term relationship with another man.
Lawyers for the Proposition 8’s backers filed their open brief on the issue this week with the 9th U.S. Circuit Court of Appeals in San Francisco. They claim that another federal judge erred when he concluded U.S. Chief Judge Vaughn Walker’s relationship status was irrelevant to Walker’s ability to fairly preside over the trial on the measure’s constitutionality.
In their brief, they argue that Walker’s impartiality can be questioned because he is “similarly situated” to the plaintiffs who sued to overturn Proposition 8, two same-sex couples in established relationships. They also said that while Walker has not indicated if he and his partner wish to marry, research presented as evidence in the trial found that two-thirds of unmarried same-sex couples would tie the knot if they could.
“Given that Judge Walker was in a long-term, same-sex relationship throughout this case (and for many years before the case commenced), he was, in Plaintiffs’ own words, ‘similarly situated to (Plaintiffs) for purposes of marriage,’ ” the lawyers wrote. “And it is entirely possible–indeed, it is quite likely, according to Plaintiffs themselves–that Judge Walker had an interest in marrying his partner and therefore stood in precisely the same shoes as the Plaintiffs before him.”
Walker’s successor, Chief Judge James Ware, rejected similar arguments in late August, after the coalition of religious conservative groups that qualified Proposition 8 for the November 2008 ballot made the first attempt in the nation to disqualify a sitting judge based on sexual orientation. Ware said the presumption that Walker could not be unbiased was “as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief.”
In an apparent response, the coalition’s attorneys wrote that they were not suggesting that gay or lesbian judges could never preside over cases involving gay rights questions.
“We know of no reason to believe, for example, that Judge Walker would have any personal interest in the outcome of litigation over, say, the constitutionality of the military’s “Don’t Ask, Don’t Tell” policy,” they said. “Nor would there be any issue with a gay or lesbian judge hearing this case so long as a reasonable person, knowing all of the relevant facts and circumstances, would not have reason to believe that the judge has a current personal interest in marrying.”
The 9th Circuit already is reviewing whether Walker properly concluded the ban violates the rights of gay Californians and if Proposition 8’s sponsors were eligible to appeal his ruling once the state’s attorney general and governor declined to challenge it. A decision could come down at any time.
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