SAN FRANCISCO (AP) — A federal judge’s long-term relationship with another man was the subject of an unprecedented court hearing Monday that sparked sharp exchanges about whether the now-retired jurist had a duty to divulge whether he wanted to marry his own gay partner before he struck down California’s same-sex marriage ban.

Lawyers for backers of the voter-approved ban asked Chief U.S. District Judge James Ware to vacate a decision issued by his predecessor last year that declared Proposition 8 an unconstitutional violation of gay Californians’ civil rights.

They maintained that former Chief Judge Vaughn Walker should have recused himself from the case or disclosed his relationship because he and his partner stood to personally benefit from the verdict.

“It now appears that Judge Walker, at the time the complaint was filed and throughout this litigation, occupied precisely those same shoes as the plaintiffs,” attorney Charles Cooper said.

Ware sharply questioned Cooper on why he assumed Walker had any intention of getting married just because he was in a decade-old relationship.

If the judge did not wish to marry, Ware suggested, his situation would have been different from the two same-sex couples who successfully sued to overturn the ban in Walker’s court.

“I’m asking you to tell me what fact you would have the court rely on to suggest that Judge Walker wanted to change, not maintain his relationship?” Ware asked.

The mere fact that Walker had a serious relationship “does not put him in the shoes of what the plaintiffs were doing, unless you cite to me some facts that he was desirous of the relief they were seeking,” Ware said.

Theodore Boutrous Jr., part of the legal team representing the gay couples, called the effort to disqualify Walker “frivolous, offensive and deeply unfortunate.” He derided Cooper’s assertion that it was Walker’s relationship status, not his sexual orientation, that called his impartiality into question.

“It’s not some news flash that Judge Walker was in a same-sex relationship,” Boutrous said. “They are targeting Judge Walker because he is gay.”

Ware revealed at the hearing’s outset that he had presided at a same-sex marriage during the brief period in 2008 when the ceremonies were legal in the state.

He said he planned to issue a written ruling within the next day. He said the matter raised important questions and called it the first case in which a judge’s same-sex relationship had led to calls for disqualification.

“There was probably the same kind of struggle when race or gender were the issue,” Ware said.

Walker publicly revealed after he stepped down in February that he is in a 10-year relationship with a same-sex partner. Rumors that he was gay had circulated before and after he presided over the trial in early 2010.

Many legal scholars have said they do not expect Ware to overturn Walker’s decision. They point out that while having a judge’s impartiality questioned because he is gay is new territory, efforts to get women judges thrown off gender discrimination cases or Hispanic judges removed from immigration cases have failed.

Ware also heard arguments on whether he should prohibit Walker from using videotaped recordings of the trial in public speeches. Cooper, said that Walker’s post-retirement use of the recordings violated a U.S. Supreme Court ruling barring the trial from being broadcast beyond the federal courthouse in San Francisco.

Lawyers for the gay couples that sued to overturn the ban and for the news media are asking Ware to now make those recordings public.

Ware said he would issue a written ruling at a later date but suggested he was disinclined to prevent his former colleague from making personal use of the videos.

Ware said Walker had been given the videos as a parting gift during a “passing the gavel” ceremony.

“It was done under my auspices. Technologists of the court presented him with a copy of the videotape for his personal possession, so I want to disclose that in case you wish to make an argument that somehow having presided over that event … I should recuse myself,” he said.

(Copyright 2011 by The Associated Press. All Rights Reserved.)

Comments (24)
  1. Marsha says:

    The people have spoken TWICE. No gay marriage! It’s wrong on so many levels…

    1. anonymous 90802 says:

      No it isn’t wrong, it is in fact none of your business who people love.

      1. PJay says:

        Agreed. Marsha is wrong on so many levels. She’s a pathetic human being who doesn’t deserve any of her rights. (as long as we’re judging people based on not even knowing them)

  2. Rick says:

    It’s fun watching the gay community try and cloak their perversion as a civil right.

    1. anonymous 90802 says:

      Someday when we look back at this, you’ll be viewed with the same disgust as a someone who thinks inter-racial marriage should be illegal.

  3. Ray says:

    What is it that the judge doesn’t understand that the people have spoken not once , but twice why is it that the will of the people can’t be enforced.

    1. PJay says:

      I totally agree! And when they people thought that there should still be slaves and that blacks and women shouldn’t have the right to vote, they were right, cuz they were in the majority. And everyone in the majority is always right…dummy.

    2. PJay says:

      Btw, and now the polls say otherwise. So you’ll instantly accept it if the majority say it’s right, right? No, of course you won’t, because you’re a bigot to your core. And you’ll fight it even when the majority don’t agree with you. Because you just love to hate. Just like Jesus. 😀

  4. TS says:

    The only way this issue will be settled once and for all is by calling a constitutional convention the openly discuss the merits for and against an amendment to the constitution concerning the definition of marriage in the U.S.A. Just my opinion.

  5. Linda says:

    Gays have no moral compass. They like to claim they were born that way. They are like pedophiles who like to claim they were born that way too.

    1. PJay says:

      Yeah, not everyone depends on an oppressive god to give them their morality. Some get it from just being moral people, without the threat of hell. And the fact is that there are many gay people who are christian (the place where so-called morality comes from). And since we’re swinging around accusations without knowing who people are….You’re a pedophile.

      1. derF says:

        Ya know, when I read your comments I tend to say HORRAY for HIV

      2. PJay says:

        Yeah…and I tend to say yay for those of with an education who can spell. Oh and yay for the true Christians, not those who use it for a cover for bigotry like you.

      3. derF says:

        Hey sodomite, I never wrapped myself in the christian flag. Oh, and I guess your alleged education taught you how to use incomplete sentences. Go find a sheep to marry.

      4. PJay says:

        OHHH, that’s so much better! You’re just a bigot for bigot’s sake. Or maybe, and more likely, this applies to you!

  6. Ted says:

    Tab “A” fits into slot “A”. Two tab “A” ‘s just bounce off each other. To slots “A” ‘s just smash into each other. Get it? Apparently your perversion has clouded your eye sight and your common sense.

    1. derF says:

      They’re more into slot B

    2. PJay says:

      You’re so right. Because you’ve never tried it in the butt or in the mouth… Yup! We invented ALL of that!!

  7. Tod says:

    Imagine when the sperm meets the egg and the genetic code gets released. As the baby develops on the super highway of development everything about it shouts boy, boy, boy, boy, boy, boy. At the last possible moment that boy baby gets off on the female off ramp. You end up with one of those ugly women that turn gay because they can’t get a man.
    It’s the same for a gay man. It’s a girl, girl, girl, girl but gets off on the male off ramp. You end up with a sissy man that want to play with dolls and likes guys. Biological mistakes one & all. Yuck!

    1. PJay says:

      Actually, you’re more describing intersex individuals who get a high dose of male or female hormones early on in their development and then develop normally as the other sex. Resulting in a brain that says the opposite of what their body is.

      And I know!!!! Biological mistakes are yucky! Like the ones that give people cancer or the ones that result in developmentally disabled, or even deaf or blind people. Ew, they should all be rounded up, right?

  8. Immigration Law says:

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  9. Wayne says:

    I hope I can’t get AIDS or HIV+ from reading these comments by people supporting a sick lifestyle. I’m going to use Clorox handy wipes to wipe down my monitor screen. That should help!

    1. PJay says:

      Yes, you can. And you can get cancer from just knowing someone who has cancer…idiot. Here, this applies to you.

  10. sweeypea says:

    HIV/AIDS the homosexual community should be pround to have these contributions included in the school curriculum that Jerry Brown is cramming down the throats of the citizens of our great state and making a mockery of our wonderful states moral values. I hope that no gurilla warriors take him out but if they do I pray they won’t take the state capital building with him, it almost happened before if ya all remember if it were not for a a homeless man who was sleeping on the state capital grounds who alerted police (before daylight).part of the capital would have been blown up.

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