For years, former San Francisco Chief Judge Vaughn Walker has maintained a same-sex relationship with a doctor, attending court functions with him and hardly treating it as a secret within the Bay Area legal community.
But despite his high-profile career as a federal judge, Walker kept his private life private to the general public, at least until he was thrust into handling the historic legal challenge to Proposition 8, California's voter-approved ban on same-sex marriage. And now Walker's personal life and relationship are front and center at another pivotal stage in the Proposition 8 legal saga.
In a hearing Monday morning, new Chief Judge James Ware will consider a bid by Proposition 8's sponsors to set aside Walker's August 2010 ruling striking down the state's gay marriage ban. The measure's lawyers argue that Walker was presumed biased at the time he invalidated the law because of his long-term same-sex relationship, and that he should have stepped aside when he was randomly assigned the case.
The argument is widely considered a long shot by legal experts, but it has injected more venom into the debate over Proposition 8's legality.
Denying that they are simply targeting Walker because he is gay, Proposition 8 backers insist the judge had a strong interest in the outcome of the case because invalidating the law could someday allow him to marry his partner. "Such a personal interest in his own marriage would place Chief Judge Walker in precisely the same shoes as the two couples who brought the case," they wrote in court papers.
But lawyers for same-sex couples, joined by state Attorney General Kamala Harris and a group of gay rights organizations, have labeled the move a "witch hunt," a desperate attempt to salvage Proposition 8 by gay marriage foes whose case is now foundering in the appeals courts.
"This is just flailing away by them," said Theodore Boutrous Jr., a lawyer for the same-sex couples.
Legal experts do not expect the argument to fly with Ware, who has inherited the case with Walker's retirement from the bench in February. Richard Painter, a University of Minnesota law professor and a top ethics lawyer for former President George W. Bush, said he doesn't consider the argument "credible," even though he disagrees with Walker's ruling striking down Proposition 8.
"I don't think recusal is justified," he said. "I think the holding (on Proposition 8) is wrong on the law "... but the holding is not wrong because the judge himself is gay or because he lives with another man. That is irrelevant."
Legal experts say it has always been difficult to recuse judges based on factors such as gender, race or nationality, citing a long history of minority judges dealing with affirmative action battles or women judges deciding abortion rights. The argument, they say, may have been a closer call had Walker made an attempt to marry shortly before taking on the Proposition 8 case. But there is no evidence of that taking place.
"It just doesn't even work factually," said Vikram Amar, a University of California Davis law professor. "If there is a (recusal required), it has to be because of a specific and imminent benefit. Not some abstract and future benefit."
The 67-year-old Walker declined to comment. In an interview in January with media members who regularly cover the federal court as he prepared to retire, Walker said he never believed his same-sex relationship was relevant to the Proposition 8 case or that he had any obligation to disclose it to the lawyers.
Walker, after holding an unprecedented monthlong trial early last year, determined that Proposition 8 violated the equal protection rights of gay and lesbian couples. Proposition 8 sponsors appealed the ruling, but that has been tied up by questions over whether the measure's supporters have a legal right to defend the law without the support of California's elected leaders.
That issue is now pending in the California Supreme Court. In the meantime, gay marriage foes moved to set aside Walker's ruling after his comments about his relationship surfaced last winter during the meeting with reporters. Despite numerous published reports about Walker's sexual orientation during the trial, Proposition 8 lawyers maintain Walker's public comments triggered their concerns about bias.
Proposition 8 general counsel Andrew Pugno did not respond to a request for comment. But in court papers, lead lawyer Charles Cooper wrote: "Only when Judge Walker belatedly disclosed that he is in a 10-year same-sex relationship did (Proposition 8 backers) have a reasonable basis for concern that Judge Walker has a direct and substantial interest in the outcome of the case and that his impartiality could reasonably be questioned."
But, again, legal experts have doubts about that argument, saying it is quirky to insist Walker is biased based on his committed relationship.
"Are (they) really arguing that Judge Walker could participate in the case but only if he was a "man about town" in San Francisco instead of living with one man or celibate?" Painter, the Minnesota law professor, said. "I doubt it. This recusal motion makes no sense."
Contact Howard Mintz at 408-286-0236.