June 13, 2011 at 5:46 pm EDT | by Chris Johnson
Judge hears arguments on whether to vacate Prop 8 ruling

A California federal district court on Monday heard arguments on whether to vacate a decision overturning the state’s ban on same-sex marriage based on arguments that the judge who presided over the case should have recused himself because he’s gay.

U.S. District Judge James Ware, the new judge presiding over the case, said he’d issue a ruling on the motion to vacate within 24 hours. Legal experts expect that the attempt to invalidate retired U.S. District Judge Vaughn Walker’s decision over his sexual orientation will fail.

Proponents of Proposition 8, a state constitutional amendment prohibiting same-sex marriage that California voters approved in 2008, contend Walker should have recused himself in the case deciding the constitutionality of the ban because of his sexual orientation. Walker, earlier this year after he made the decision overturning the ban, reportedly told the media he was gay and that he’s been in same-sex relationship for 10 years.

Additionally, Prop 8 supporters contend plaintiffs’ lawyers must return their copies of the video recordings of the trial. Walker had used a three-minute videotape of the trial during a lecture he gave a month ago, invoking the ire of those worked to enact Proposition 8 and said they didn’t want testimony during the trial viewed publicly.

After the hearing, Ware said he’d issue a ruling denying that motion and permitting the lawyers to keep the tapes.

Kate Kendell, executive director of the National Center for Lesbian Rights, said the hearing on Monday revealed that the proponents of Prop 8’s claim that Walker’s ruling should be invalidated is “absolutely baseless.”

“During the hearing, Judge Ware pointedly asked the attorney for the proponents whether an African-American judge would have to recuse himself from a race discrimination case because some people might view him as biased,” Kendell said. “As Judge Ware’s question artfully showed, our legal system does not assume that judges who are in the majority with respect to their race, religion, sexual orientation or any other personal characteristic are the only ones who can be unbiased. Judges take an oath to be impartial and do their job faithfully. It is outrageous and offensive to suggest that a gay judge is incapable of fulfilling that vow, or that Judge Walker did not do so in this case.”

Even if Ware upholds Walker’s decision, the case will remain pending on appeal. The U.S. Ninth Circuit of Appeals has asked the California State Supreme Court to evaluate whether defendants have standing to appeal the case. Hearings are expected as early as September.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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