Gay judge’s same-sex marriage ruling upheld

A federal judge on Tuesday had a message for those trying to salvage California's gay marriage ban: Sure, the judge who threw out the measure last year is in a long-term relationship with a man, but he could still be fair to them.

Chief U.S. District Court Judge James Ware's ruling rejected arguments that former Chief Judge Vaughn Walker would potentially benefit from declaring the ban unconstitutional.

In his 19-page decision – a response to the first attempt in the nation to disqualify a judge based on sexual orientation – Ware had a bigger message. Gay judges, he said, are just like minority and female jurists: They can be impartial, too, even in cases that might affect them.

“We all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right,” he 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.”

Ware upheld his retired predecessor's ruling that struck down Proposition 8.

Finding that Walker could not be presumed to have a personal stake in the case just because he has a same-sex partner, Ware wrote that the judge had no obligation to divulge whether he wanted to marry before he struck down the ban.

“The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief,” he wrote.

The ruling does not settle the legal fight over the measure.

The sponsors of the ban are planning to appeal Ware's ruling. Lawyer Charles Cooper, who represents the conservative religious coalition that put the ban on a 2008 ballot, said he disagrees with the ruling., which filed the challenge, said it would appeal and “continue our tireless efforts to defend the will of the people of California to preserve marriage as the union of a man and a woman.”

Meanwhile, the 9th U.S. Circuit Court of Appeals is considering whether Walker properly concluded that denying gays and lesbians the right to marry violates their rights to due process and equal protection. The court also is eyeing whether the religious coalition is legally entitled to appeal Walker's verdict.

Tuesday was a day filled with good news for the gay rights community.

In New York, state lawmakers are within one vote of legalizing gay marriage. And in Los Angeles, the country's largest consumer bankruptcy court sided with a gay couple seeking to file a joint bankruptcy petition, taking the extraordinary step of declaring that the federal law prohibiting same-sex marriages is unconstitutional.

Same-sex couples can legally marry in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and the District of Columbia.

Ware's opinion came in response to an April motion by coalition lawyers that sought to have Walker's ruling vacated on conflict of interest grounds.

Walker publicly revealed after he retired in February that he is in a 10-year relationship with a man. Rumors that he was gay had circulated before and after the trial. Walker did not attend Monday's hearing on the matter and has declined to comment on the bias allegations.

Chad Griffin, president of the American Foundation for Equal Rights, the group that spearheaded the successful effort to overturn Proposition 8 in Walker's court, called Ware's decision to reject the challenge a precedent-setting victory that advances equal rights and treatment for all Americans.

“This bigoted and homophobic motion will prove to be a real low point in the struggle for equality and full civil rights for gay and lesbian people,” he said.

Some supporters saw greater meaning in Ware's ruling.

“This opinion is going to be in line with those (earlier) decisions with regard to race, ethnicity, gender and religious background that people will cite for many years in saying that gay judges, lesbian judges, are entitled to the same impartiality presumptions as all other judges,” said Theodore Boutrous Jr., an attorney on the legal team that sued to overturn Proposition 8 on behalf of two unmarried same-sex couples

In his ruling, Ware cited previous cases dealing with women and minority judges in concluding that his predecessor had acted appropriately.

“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,” he wrote.

Ware said Walker did not have a duty to disclose his romantic life and would have hurt “the integrity of the judiciary” if he had revealed his relationship during the trial.

Lawyers for backers of the ban argued at a hearing Monday that Walker should have recused himself or disclosed his relationship because he and his partner stood to personally benefit if the ban were invalidated and same-sex unions were again legal in California.

Many legal scholars had not 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.

“Every judge that has ever ruled on analogous questions about any other personal characteristic, whether it's sexual orientation, being blind or having owned a Fiat, has said it's a non-issue. Basically what they have said is a judge's personal background is never a relevant basis for recusal,” said Richard Flamm, a judicial ethics expert and author of “Judicial Disqualification: Recusal and Disqualification of Judges.”

Flamm said he nevertheless doubted that Ware's speedily issued decision would dissuade lawyers in future cases from challenging a judge because he is gay.

“This disqualification motion was made for strategic reasons,” he said. “So the reality is, people will continue to make strategic motions unless there is an opinion handed down from the U.S. Supreme Court directly on point that says sexual orientation is not grounds for judicial disqualification.”

California already is the only state with a law specifically including sexual orientation among the personal characteristics that may not be used to seek a judge's disqualification, although Ware did not cite it in Tuesday's ruling.

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