In another swing at the judge who declared Proposition 8 to be unconstitutional, backers of the measure Monday asked that his decision be voided because he failed to disclose that he was gay and in a long-term relationship with another man.
In a court filing, the sponsors of the ban on gay marriage, ProtectMarriage, asked the chief judge of the federal court in San Francisco to nullify last August's ruling by former U.S. District Chief Judge Vaughn R. Walker, who retired earlier this year.
ProtectMarriage said Walker should have disclosed his involvement with his male partner before presiding over the marriage trial because it constituted a conflict of interest.
Walker earlier this month publicly discussed his sexual orientation, though it was widely known even before last year's trial. During pretrial interviews, The Times asked attorneys for ProtectMarriage whether they would make an issue of Walker's sexual orientation. They declined to comment.
In their legal filing, the lawyers said Walker's public acknowledgment of his long-term relationship provides fuel for overturning his judgment.
"Judge Walker's 10-year-long same-sex relationship creates the unavoidable impression that he was not the impartial judge the law requires," ProtectMarriage argued in the legal filing.
Andy Pugno, a lawyer for ProtectMarriage, said the group was not suggesting that it would be inappropriate for any gay or lesbian judge to sit on the case. "Rather, our motion is all about the fundamental principle that no judge is permitted to try a case where he has an interest in the outcome," Pugno said.
Erwin Chemerinsky, dean of law at UC Irvine and an expert in the federal constitution, said "there is no chance whatsover" that Walker's ruling would be voided because the judge failed to tell the backers of Proposition 8 that he was gay.
"No judge is going to say that another judge has a duty to declare his or her sexual orientation," the law professor said.
He said that would be akin to asking black judges to recuse themselves from race discrimination cases or female judges to remove themselves from litigation involving sex bias.
ProtectMarriage already has asked the U.S. 9th Circuit Court of Appeals to order Walker to return video recordings of the trial. Walker has used a snippet from the testimony when giving lectures on cameras in the courtroom. ProtectMarriage has argued Walker's use of the video violated promises he made to the backers of the measure and defied the U.S. Supreme Court.