SAN FRANCISCO (CBS/AP) — Proponents of California’s same-sex marriage ban filed a motion Monday seeking to vacate the historic ruling that overturned Proposition 8 because the federal judge who wrote it is in a long-term relationship with another man.

Lawyers for the ban’s backers said in the motion in San Francisco’s U.S. District Court that Chief U.S. District Judge Vaughn Walker should have removed himself from the case, or at least disclosed his relationship status, because his “impartiality might reasonably be questioned.”

“Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case,” attorneys for the coalition of religious and conservative groups that put Proposition 8 on the November 2008 ballot wrote. Proposition 8 overturned a ruling by the California Supreme Court legalizing same-sex marriages.

They are now asking the judge who inherited the case when Walker retired at the end of February to vacate Walker’s August 2010 decision. The 9th U.S. Circuit Court of Appeals already is reviewing its legal merits at the request of the voter-approved measure’s proponents.

Walker has said that he did not consider his sexual orientation to be any more a reason for recusal than another judge’s race or gender normally would be. A spokeswoman said Monday that the judge wouldn’t comment on the motion.

American Foundation for Equal Rights President Chad Griffin, whose group has funded the legal effort to strike down Proposition 8, scoffed at the notion that the judge’s personal life could imperil his ruling.

Griffin noted that the Obama administration recently had decided to stop defending the federal law that bans recognition of same-sex marriage after determining that it, too, was unconstitutional.

“This motion is another in a string of desperate and absurd motions by the proponents of Proposition 8, who refuse to accept that the freedom to marry is a Constitutional right,” he said.

Walker, a 67-year-old Republican appointee, declared Proposition 8 to be an unconstitutional violation of gay Californians’ civil rights last summer. He retired from the bench at the end of February.

Rumors that the judge was gay circulated during the 13-day trial that preceded his decision and after he handed down his ruling.

Lawyers for Protect Marriage, the coalition that sponsored Proposition 8, however, did not raise his sexual orientation as a legal issue until Monday.

Protect Marriage general counsel Andy Pugno said that changed after the judge disclosed his 10-year relationship this month to a group of courthouse reporters. The issue is not that Walker is gay, but that his relationship status made him too similar to the same-sex couples who sued for the right to marry, Pugno said.

“We deeply regret the necessity of this motion. But if the courts are to require others to follow the law, the courts themselves must do so as well,” Pugno added.

Indiana University Law School professor Charles Geyh, an expert on judicial ethics, said he was strongly inclined to agree with Walker that a judge’s sexual orientation is irrelevant to his ability to render a fair decision.

“It really implies it would be fine if he were essentially surfing at bars and had a new partner every night because he wouldn’t want to be married,” he said. “I don’t see that as advancing their cause.”

(Copyright 2011 by CBSSan Francisco. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. Wire services may have contributed to this report.)

Comments (18)
  1. G. says:


  2. macbaldy says:

    Only a celibate monk or nun should judge this issue then? A judge in any domestic relationship can be branded as biased against the opposite kind of pairing? Yeesh!

  3. siege says:

    So by extension an African American could never manage a racial discrimination case? A divorced woman a contentious divorce case? And by the thinking of the pro-8 side, a heterosexual married judge’s marriage itself would be threatened by same-sex marriage, so naturally any such judge would also be unqualified, right?

    1. Philip says:


      We don’t want to ‘warp’ the issue.

      A black man can judge a racial case – but not the first one.

      A divorced woman etc can. but not the first one.

      Society accepts there are gay people it does not accept there is a concept of a ‘gay marriage’, yet. Gay people are juts so paranoid to see themselves as normal when in fact they are not your average normal couple- that is a fact that will never change.

      A FACT : If we all became gay overnight then that would be the end of the human race. This true statement is what is wrong with GAY people and their warped view of the world. You are different Society accepts you but you still persist in trying to say you are equal – you try and compare apples with oranges. It is this warped illogical thinking that has alienated many hetros.

      Try and focus on your different and make sure you are treated in society the same as everyone else. Stop the stupidity and try and say you are the same as hetro people when you are clearly not.

      1. dead_than_red says:

        ignorant moron.

  4. WASP says:

    Pathetic old queen…stole the votes of millions of Caleefornians just to make a name for himself at the gay bar.

    CA = r.i.p.

  5. M says:

    Oh come on, I still fail to see how same sex marriage is a threat. Any reasonable person can see that the only “threat” to marriage is divorce, yet I don’t see protests outside divorce lawyers’ offices or propositions to ban divorce. But I guess it’s the right of ignorant, insecure people to want someone else to look down upon so they don’t have to look too closely at themselves.

    1. Philip says:

      M it is not a threat it is an ‘Insult’ to hetros and a serious ‘warped” logical by gay proponents.

  6. Fred says:

    To Siege,
    No not the same. How would the discrimination & divorce case directly benefit the Judge?? We only have retired Judge Walker’s word that he is not interested in being married to his gay lover. People change their minds often. What if he meets a guy that he wants to marry? Then he would benefit from his decision.

  7. philip says:

    Disgraceful !

    The Judge is a failure his last ruling shows that you cannot trust the courts as they themselves have a warped sense of reality.

    For all the guy folks focus on getting equal civil rights for gay partnerships. Chasing down ‘marriage’ is an insult to hetro people – don’t you get it !.

    You will never be regarded as ‘equal’ by the majority of society.

    Saying you are “married” will not matter as hetro will still always regard gay folks as “different”. This is not hate by hetros in general, it is a simple fact you are different.

    You are human beings that are different in your way of life. I still do not see why you do not accept CIVIL union as a characterization of your partnership. A basic tenant behind marriage is the production of children – something that you can never achieve biologically.

  8. Philip says:

    A “gay” judge making a “gay” ruling after the people have voted against the issue.

    Thats what I coin ‘Gay Law”

    1. dead_than_red says:

      and you’re still an ignorant moron. sure hope you haven’t spawned, hopefully your ignorant DNA ends with you.

  9. Taylen says:

    So basically no straight judge can make a ruling in any opposite sex issue. That’s what this appeal is saying. Only gay judges are allowed to hear divorces, those involving domestic abuse, child custody, or anything else involving opposite sex disputes that could set future precedents. Sorry Judge Judy, your show can only feature gays or disputes among friends…

  10. siege says:

    Amazing how the truly hateful bile always seems to come from the Right, regardless of the issue. Doesn’t matter, they’re on the wrong side of history regardless. It’s the younger generation who will be in power soon, and they’re growing up without the backward thinking that will soon be seen to be as repugnant as the racial discrimination of the past.

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