Gay judge’s ruling against ban on same-sex marriage upheld

A FEDERAL judge yesterday upheld a gay judge’s ruling striking down California’s ban on same-sex marriage, noting that his fellow justice could not be presumed to have a personal stake in the case just because he was in a long-term same-sex relationship.

Chief US District Judge James Ware said former chief judge Vaughn Walker had no obligation to divulge whether he wanted to marry his own gay partner before he declared last year that the voter-approved Proposition 8 was unconstitutional.

Ware said it was the first case in which a judge’s same-sex relationship had led to calls for disqualification. He said there were probably similar struggles when race and gender were the issues at stake.

However, the ruling does not settle the legal fight. The 9th US Circuit Court of Appeals is considering whether Walker properly concluded that denying gay and lesbian couples the right to marry violates rights to due process and equal protection.

In his ruling, Ware cited previous cases dealing with women and minority judges to decide his predecessor acted appropriately.

He wrote: “The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification.”

On Monday, lawyers for supporters of the ban argued that Walker should have recused himself or disclosed his relationship because he and his partner stood to benefit personally from the verdict.

After retiring in February. Walker publicly revealed that he is in a 10-year relationship with a man. Rumours had circulated before and after he presided over the trial.

Ware rejected the idea that judges who are members of minority groups have more of a vested interest in the outcome of civil rights cases based on the US Constitution than anyone else.

“We all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right,” Ware wrote. “The single characteristic that Judge Walker shares with the plaintiffs, albeit one that might not have been shared with the majority of Californians, gave him no greater interest in a proper decision on the merits than would exist for any other judge or citizen.”

Few legal scholars had expected Ware to overturn Walker’s decision. They said having a judge’s impartiality questioned because he is gay is new territory, but efforts to get female judges thrown off gender discrimination cases or Hispanic judges removed from immigration cases have failed.