In another jab at the federal judge who ruled against Proposition 8, sponsors of the gay marriage initiative asked a district court Monday to set aside the ruling on the grounds the judge was in a long-term same-sex relationship that posed a conflict of interest.
Attorneys for ProtectMarriage, the group that sponsored the 2008 ballot initiative, said in a legal motion that Chief Judge Vaughn R. Walker, who retired from the San Francisco-based district court earlier this year, had a duty to disclose his relationship and step down before deciding whether a ban on same-sex marriage violated the federal Constitution.
"Judge Walker's ten-year-long same-sex relationship creates the unavoidable impression that he was not the impartial judge the law requires," said Andy Pugno, a lawyer for ProtectMarriage. "He was obligated to either recuse himself or provide full disclosure of this relationship at the outset of the case. These circumstances demand setting aside his decision."
Walker, 67, a Republican appointee, was widely known within San Francisco's legal community to be gay. He brought his partner to bar events and introduced him to others as his partner. Some publications, including The Times, wrote about his sexual orientation prior to his ruling, but until Monday, ProtectMarriage had not made an issue of it.
A spokeswoman for ProtectMarriage said Walker's conflict was not his sexual orientation, but the fact that he was in a serious same-sex relationship that could conceivably lead to marriage.
"Under governing California law, Judge Walker currently cannot marry his partner," Pugno said. "But his ruling in this case, if ultimately upheld, would give him a right to do so."
Erwin Chemerinsky, law school dean at UC Irvine, said there was "no chance whatsoever" that a court would void Walker's ruling against Proposition 8 on the grounds that he should have disclosed his personal relationship.
"This is an offensive personal attack on Vaughn Walker," Chemerinsky said. He likened the legal maneuver to an argument that black judges cannot decide race discrimination cases or female judges preside over cases involving sex bias.
Chad Griffin, who founded the group that launched the lawsuit against Proposition 8, called the request to nullify the ruling one of "a string of desperate and absurd motions by the Proposition 8 proponents who refuse to accept their loss in district court."
Griffin, a political strategist, suggested ProtectMarriage might be using the motion as a fundraising or public relations tool. ProtectMarriage is financing the costly legal battle, which is expected to eventually reach the U.S. Supreme Court.
Monday's motion asks U.S. District Court Chief Judge James Ware, who has replaced Walker, to set aside Walker's ruling. Walker presided over a 12-day trial last year in which witnesses testified about the nature of sexual orientation and the history of marriage.
The motion follows an attempt earlier this month by Proposition 8's backers to rebuke Walker for what they said were broken promises and defiance of the U.S. Supreme Court.
In that move, ProtectMarriage asked the U.S. 9th Circuit Court of Appeals to order Walker to return video recordings of the trial after the group learned he was showing a snippet from testimony during lectures on whether trials should be taped for public viewing. The U.S. Supreme Court had barred Walker from showing video recordings of the trial outside the San Francisco courthouse.
ProtectMarriage has appealed Walker's ruling to the 9th Circuit. The federal court, trying to decide whether the group even has the right to lodge an appeal, has asked the California Supreme Court to decide whether initiative sponsors under California law have legal authority or "standing" to defend ballot measures in court. The state court is expected to decide the issue later this year.