SAN FRANCISCO – The sponsors of California's gay marriage ban renewed their effort Thursday to disqualify a federal judge because of his same-sex relationship — the first time an American jurist's sexual orientation has been cited as grounds for overturning a court decision.
Lawyers for a coalition of religious conservative groups met a skeptical audience in the three-judge panel from the 9th U.S. Circuit Court of Appeals as they argued that now-retired Chief U.S. District Judge Vaughn Walker should have revealed that he had a long-term male partner.
He should have stated whether he had any interest in getting married before he presided over a January 2010 trial on the measure's constitutionality, they said. Because he did not, Walker's impartiality stands in doubt and the decision he ultimately made to strike down Proposition 8 as a violation of gay Californians' civil rights must be reversed, said Charles Cooper, an attorney for the ban's backers.
"In May 2009, when Judge Walker read the allegations of the complaint, he knew something the litigants and the public did not know: He knew that he, too, like the plaintiffs, was a gay resident California who was involved in a long-term serious relationship with an individual of the same sex," Cooper said. "The litigants did not have any knowledge of these facts, and it appears that Judge Walker made the deliberate decision not to disclose these facts."
Judge R. Randy Smith, who represents Idaho on the 9th Circuit, interrupted to forcefully ask why a gay judge would be any more obligated to divulge his relationship status and views on matrimony than would a married straight judge who opposes same-sex marriage.
"So a married judge could never hear a divorce?" Smith asked.
"Your honor, I don't see the difficulty with a married judge hearing a divorce action," Cooper answered.
Smith replied: "Would he have to disclose, 'Oh, I've been married, and we've been married for 24 years and we have a relationship that's kind of difficult.' That's what you are arguing here?"
Cooper said that if Walker had "desired to marry his partner, he would have stood in exactly the same shoes as the plaintiffs in this case."
The appeals court did not immediately rule on the matter.
In June, Walker's successor, Chief Judge James Ware, rejected the same arguments from the ban's backers that Walker's ruling should be overturned because he stood to personally benefit from declaring Proposition 8 unconstitutional. The hearing Thursday was over an appeal of Ware's decision.
The 9th Circuit panel also heard arguments on whether it should unseal video recordings Walker made of the trial on the voter-approved ban's constitutionality.
After the U.S. Supreme Court barred the trial's video broadcast beyond Walker's courtroom, the judge had his staff record the proceedings but said they would only be viewed by him in his chambers to refresh his memory while he was preparing his opinion.
Lawyers for the two couples who successfully sued in Walker's court and a coalition of media organizations that includes The Associated Press are asking the appeals court to make the recordings public.
The 9th Circuit has said it needed to hear arguments on both the significance of Walker's relationship and the public release of the trial videos before it can reach the more substantive issue of whether Walker correctly struck down Proposition 8 on federal constitutional grounds.
The appeals court panel heard arguments about that in January, but does not face a deadline for making a decision.