A federal judge appeared reluctant Monday to set aside last year's ruling striking down California's ban on same-sex marriage because of the trial judge's same-sex relationship, but likewise did not dismiss outright the bias arguments raised by foes of gay nuptials.
During several hours of legal arguments in his San Francisco courtroom, Chief U.S. District Judge James Ware made it clear that he was wading into uncharted legal territory in evaluating whether former Chief Judge Vaughn Walker had an obligation to bow out of the Proposition 8 case because of his long-term relationship with a male doctor.
While noting that there is a long history of legal challenges to minority judges raising questions of bias, most of which have failed, Ware told lawyers he was unaware of any such challenge in the law books involving a gay judge.
"It's important we treat it seriously and get it right," Ware said.
The judge indicated he would rule as soon as Tuesday on a move by Proposition 8's sponsors to wipe out Walker's ruling last year invalidating the state's voter-approved ban on same-sex marriage. Proposition 8 lawyers argue that Walker was presumed biased when he inherited the case because he stood to gain the legal right to marry if the law was declared unconstitutional.
But while Ware did not shoot the argument down on Monday, he was troubled by the suggestion that Walker could not judge the case fairly because of his own relationship, particularly because there was no evidence he has any desire to marry. Walker, after the trial, publicly acknowledged the fact that he is gay and that he's been in a 10-year relationship. But he rejected the suggestion that it rendered him unable to hear the Proposition 8 case.
When Proposition 8 lawyer Charles Cooper insisted Walker "occupied those same shoes" as the two couples who sued to overturn the gay marriage ban, Ware kept interrupting, saying there is no proof they are in the same circumstances.
"What is the fact you rely on? That Judge Walker was in a relationship for the purposes of marriage?" Ware asked Cooper at one point. At another point, he said: "There has been no evidence that he has such an interest."
Later, Ware asked Theodore Boutrous Jr., a lawyer for same-sex couples, if the inquiry would be different if in fact there was evidence Walker had a desire to marry his partner. "I perhaps don't need to go there," Ware said, "but it is an argument that bears close examination."
Boutrous steered clear of the question, calling the effort to disqualify Walker "frivolous, offensive and deeply unfortunate."
While some conservative legal scholars believe Walker should have recused himself from the case, most legal experts say the argument is on weak footing and is unlikely to be accepted by Ware or the appeals courts.
Walker's ruling is now on appeal, tied up in questions over whether Proposition 8 backers have a legal right to defend the law when top state officials refuse to do so.
Contact Howard Mintz at 408-286-0236.