SAN FRANCISCO – Proponents of California's same-sex marriage ban filed a motion Monday seeking to vacate the historic ruling that overturned Proposition 8 because the federal judge who wrote it is in a long-term relationship with another man.
Lawyers for the ban's backers said that Chief U.S. District Judge Vaughn Walker should have removed himself from the case, or at least disclosed his relationship status, to avoid a real or perceived conflict of interest.
"Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case," attorneys for the coalition of religious and conservative groups that put Proposition 8 on the November 2008 ballot wrote.
They are now asking the judge who inherited the case when Walker retired at the end of February to toss out Walker's August 2010 decision. The 9th U.S. Circuit Court of Appeals already is reviewing its legal merits at the request of the voter-approved measure's sponsors.
Walker has said that he did not consider his sexual orientation to be any more a reason for recusal than another judge's race or gender normally would be. A spokeswoman said Monday that the judge wouldn't comment on the motion.
American Foundation for Equal Rights President Chad Griffin, whose group has funded the legal effort to strike down Proposition 8, scoffed at the notion that the judge's personal life could imperil his ruling.
Griffin noted that the Obama administration recently had decided to stop defending the federal law that bans recognition of same-sex marriage after determining that it, too, was unconstitutional.
"This motion is another in a string of desperate and absurd motions by the proponents of Proposition 8, who refuse to accept that the freedom to marry is a Constitutional right," he said.
Walker, a 67-year-old Republican appointee, declared Proposition 8 to be an unconstitutional violation of gay Californian's civil rights last summer.
Rumors that the judge was gay circulated during the 13-day trial that preceded his decision and after he handed down his ruling.
Lawyers for Protect Marriage, the coalition that sponsored Proposition 8, however, had purposely refrained from raising his sexual orientation as a legal issue until Monday.
But they decided it gave them grounds for getting Walker's decision struck down after the judge disclosed his 10-year relationship this month to a group of courthouse reporters, Protect Marriage general counsel Andy Pugno.
The issue is not that Walker is gay, but that his relationship status made him too similar to the same-sex couples who sued for the right to marry, Pugno said.
"We deeply regret the necessity of this motion. But if the courts are to require others to follow the law, the courts themselves must do so as well," Pugno added.
Indiana University Law School professor Charles Geyh, an expert on judicial ethics, said he was strongly inclined to agree with Walker that a judge's sexual orientation is irrelevant to his ability to render a fair decision.
Without more evidence that Walker stood to personally benefit if same-sex marriages were legal in California, the Proposition 8 defense team's raising of his relationship is likely to fail or could even backfire, Geyh said.
"It really implies it would be fine if he were essentially surfing at bars and had a new partner every night because he wouldn't want to be married," he said. "I don't see that as advancing their cause."
Proposition 8's sponsors also have been trying to get the federal appeals court to order Walker to return his personal video copy of the trial. The judge has been using a three-minute segment of a defense witness being cross-examined for a lecture he's been giving on cameras in the courtroom.