Chief Judge Skeptical of Bias Claim Against Jurist Who Nixed Prop. 8

SAN FRANCISCO (CN) - Boisterous laughter rang out in a federal courtroom Monday after the lead attorney for the proponents of the ban on gay marriage in California said the openly gay judge who found the ban unconstitutional last August should have disclosed whether he planned to marry his partner of 10 years.

At the hearing to determine whether former Chief U.S. District Judge Vaughn Walker should have recused himself, attorney Charles Cooper argued that Walker had the same interest in the outcome of the case as the four plaintiffs, who are all in committed, long-term relationships.

"That long-term relationship is itself of great relevance to the question of if one would reasonably question the judge's impartiality," Cooper said. "Judge Walker was bound because of its relevance to disclose that when the case was assigned to him." He added that Walker "did not disclose that he was standing in the same shoes as the plaintiffs."

Chief U.S. District Judge James Ware, who took over Walker's caseload after the latter's retirement this year, pressed Cooper to identify any specific instance that proved Walker's relationship to his partner was in any way similar to the plaintiffs' such that it could bias him.

Ware questioned whether Cooper fully understood the differences between the four plaintiffs, who all desired to marry their respective partners, and Walker. "Both they and Judge Walker could have remained in a long-term relationship without it being affected by the decision," Ware said. "The relief they sought was to change their relationship. So what fact do you have that Judge Walker sought to change his relationship instead of simply being in it? What fact would you have the court rely upon that Judge Walker wanted to change his relationship, not maintain it?"

Cooper replied that Walker would have to disclose even the possibility that "he had no interest in marrying his partner."

Throughout Cooper's allotted 45 minutes for argument, Ware grew increasingly impatient with the lawyer's assumptions about Walker's intentions to marry. "I hear my voice, but I'm not sure that you hear you," Ware said. "You've again repeated 'interest in marrying.' I find it significant that the knowledge that the judge has an interest in marrying the partner - if that is a part of your argument that that must appear - I want to tell you I'm going to hold you to that."

Ware said he was hesitant to use a test whereby a reasonable person might find Walker's same-sex relationship had any bearing on his partiality. "There are lots of people that might ignore the Constitution in their daily lives," Ware said. "So if a reasonable person thought a black judge should recuse himself from a civil-rights case, that would be sufficient to recuse the judge?"

"You can't simply assume that a judge that takes an oath to uphold the law and decide a case fairly is incapable of doing so," he added.

Ware also heard argument from both sides on whether video recordings of the January 2010 trial proceedings should be returned to the court. In April, the proponents' attorneys filed a motion to compel Walker to return his tape after he played an excerpt before an audience at the University of Arizona. C-SPAN later broadcast the speech and consequently the arguments. Walker has since returned the tape, but the plaintiffs' attorneys argued they should be able to keep their copy.

"We have been abiding scrupulously by the protective order," attorney Theodore Boutrous said on behalf of the plaintiffs. Boutrous also said the tape is "extremely useful" to the plaintiffs' case, as Walker's ruling is currently up for appeal before the 9th Circuit. "There were so many clips that graphically demonstrated our case and showed theirs was baseless," he said.

Boutrous also said the opponents of the gay marriage ban may later request the recordings be made public. "The one thing about the motion to vacate judgment that is relevant here is that by attacking the credibility of the court and of Judge Walker, the proponents have made it even more important for the public to see what happened," he said.

Boutrous called the proponents' motion to vacate Walker's ruling "frivolous, offensive and deeply unfortunate."

"No matter what they say their motion is targeting Judge Walker's sexual orientation," Boutrous said, condemning Cooper's argument that Walker's decision not to disclose his relationship revealed a judicial bias that should have prompted his recusal.

"It should not be any surprise that he has a relationship," Boutrous said. "It's not some newsflash." He added that it was unfair of Cooper to speculate that Walker had an interest in gay marriage because of his relationship status. "Just because people are gay in relationships doesn't mean they are all alike," he said.

Boutrous compared Cooper's targeting of Walker to the same kind of challenges minority judges used to face in civil-rights cases involving race. "It's the same rancid wine in a different bottle," he said.

Ware said he would probably deny the proponents' motion regarding the videotape, and that he would likely issue a ruling on the motion to vacate judgment within the next 24 hours.

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