LOS ANGELES (CBS/AP) — Backers of the voter-approved ban on same-sex marriage in California are shifting their legal strategy after revelations that the judge who struck down the measure last summer is homosexual.

KNX 1070’s Ron Kilgore reports attorneys for Prop. 8 supporters filed a motion on Monday seeking to vacate Chief U.S. District Judge Vaughn Walker’s controversial ruling.

Lawyers for the ban’s backers argue that the judge’s relationship status, not his sexual orientation, gave him too much in common with the couples who successfully sued to overturn the ban in his court.

The judge should have recused himself or at least revealed the relationship to avoid a real or perceived conflict of interest, the lawyers say.

“If at any time while this case was pending before him, Chief Judge Walker and his partner determined that they desired, or might desire, to marry, Chief Judge Walker plainly had an interest that could be substantially affected by the outcome of the proceeding,” wrote attorneys for the coalition of religious and conservative groups that put Proposition 8 on the November 2008 ballot.

They are now asking the judge who inherited the case when Walker retired at the end of February to toss out 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 sponsors.

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. He also ordered the state to stop enforcing the gay marriage ban, but the 9th Circuit put his order on hold while the case is on appeal.

Speculation about Walker’s sexual orientation 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, had purposely refrained from raising his sexual orientation as a legal issue until Monday.

But they decided it gave them grounds for getting Walker’s decision struck down after the judge disclosed his 10-year relationship this month to a group of courthouse reporters, said Protect Marriage general counsel Andy Pugno.

“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.

Proposition 8’s sponsors also have been trying to get the federal appeals court to order Walker to return his personal video copy of the trial. The judge has been using a three-minute segment of one of their witnesses being cross-examined for a lecture he’s been giving on cameras in the courtroom.

(TM and © Copyright 2010 CBS Local Media, a division of CBS Radio Inc. and its relevant subsidiaries. CBS RADIO and EYE Logo TM and Copyright 2010 CBS Broadcasting Inc. Used under license. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)

Comments (5)
  1. Ron says:

    This is a reason that ONE judge, should NEVER make a ruling on such important issues, when THAT judge obviously has a CONFLICT of interest(10 years in a gay relationship). We need a minimum of 3 judges or a jury, so that there is NEVER another ruling like this, that effects so many people.

    TOO often one judge, overturns majority decisions of the VOTERS. This CAN’T continue. Talk about a BROKEN legal system !!

  2. Karen says:

    Not only did Justice Walker NOT INFORM US THAT HE WAS IN A GAY RELATIONSHIP, this case was filed in federal court BEFORE THE CA SUPREME COURT issued its ruling.

    There is no doubt in my mind that the judge colluded with the gay couples’ attorneys because Judge Walker WAS CHIEF JUSTICE of that District Court and knew how judges were assigned to cases.

    The case was filed in federal court BEFORE the CA Supreme Court issued its ruling for one reason – JUDGE WALKER WOULD BE ASSIGNED THE CASE. JUDGE WALKER IS GAY AND HAS AN INTEREST IN THE OUTCOME OF THE CASE.

    How in the world did the gay couples’ attorneys KNOW that the CA Supreme Court would rule against them and/or why did they file before they even had a complaint? Usually, when one files a case in court, THEY HAVE A COMPLAINT FIRST.


    We voters said NO to gay marriage TWICE. How dare a single gay judge overturn that vote? In our state, the right of the voters to determine law is sacrosanct EXCEPT when we have these judges and legislators and governors doing whatever the hell they want.

  3. Mark says:

    First of all, let’s get the facts straight (excuse the pun). Voters only said no to same sex marriage down ONCE. If a vote were to happen today, polls show that Proposition 8 would not be voted into law (it should have NEVER been put on the ballot in the first place). Second, the outcome of the trial is currently in the hands on a panel of THREE judges, so ultimately it will not be decided by just one judge. And even if this suit was not filed, whatever the outcome, the final decision will no doubt be appealed to the Supreme Court of the United States. This is just a delay tactic.

    1. Karen says:

      Mark – I voted twice and said no to gay marriage both times. Maybe you were in another state the first time we voted. In addition, your legal analysis is really lacking so I wish you were the gay couples’ attorney.

      The first time we voted, it was a law that was ruled unconstitutional. The second time we voted, WE CHANGED THE CONSTITUTION.

      I fully expect the gay couples’ case to be dismissed because MARRIAGE LICENSES are granted by the state, NOT FEDS.

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