By Maura Dolan, Los Angeles Times
June 16, 2011

Reporting from San Francisco — A federal judge’s refusal Tuesday to invalidate last year’s ruling against Proposition 8 established for the first time that gay judges may decide gay rights cases without having to defend their impartiality.

U.S. District Chief Judge James Ware ruled that retired Judge Vaughn R. Walker, 67, who is openly gay, was not required to remove himself from the same-sex marriage case because he has a long-term partner.

“It is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings,” Ware wrote.

The ruling also suggested that Walker had no obligation even to disclose his personal relationship with his partner.

If Walker had revealed “intimate but irrelevant details of his personal life” to the litigants, he could have “set a pernicious precedent” for other judges by promoting disclosure of highly personal information, Ware said.

Ware’s decision was in line with other cases involving challenges of judges based on race, gender and religion.

“The notion that judges cannot be attacked based on their membership in a minority group has now been reaffirmed in the context of gay and lesbian judges,” said Theodore Boutrous, who argued the case for two same-sex couples challenging California’s gay marriage ban. “I think people will be citing this decision for many years.”

USC law professor Clare Pastore, who teaches legal ethics, said the ruling reflects “precisely where we were 30 years ago with African American and women judges, when those [recusal] motions went down in flames.”

Tuesday’s decision was novel only because it involved an openly gay judge, still a rarity in the justice system, Pastore said.

Charles Cooper, the lead attorney for Proposition 8’s sponsors, said the group would appeal the ruling 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.”

Tony Perkins, president of the Family Research Council, which opposes same-sex marriage, said Walker’s ruling remains tainted because he had a stake in the outcome.

“His failure to disclose this potential personal interest in the outcome of the case casts serious doubt on his ruling’s credibility,” Perkins said.

Walker ruled in August that Proposition 8 violated federal constitutional rights, a decision that is on hold pending appeal. The case is expected eventually to reach the U.S. Supreme Court.

ProtectMarriage, the sponsors of the 2008 ballot measure, had asked Ware to invalidate Walker’s ruling on the grounds that he had a personal, undisclosed stake in the case. The group said Walker should have disclosed his now 10-year relationship with his partner so he could have been asked about his interest in marrying the man.

But Ware said such a requirement would “place an inordinate burden on minority judges.”

Even if Walker had disclosed his relationship, a court could not interpret “the subtleties of a judge’s personal, and likely ever-changing, subjective states on such intimate matters,” Ware said. A judge who renounced marriage plans could still change his or her mind, Ware noted.

Walker, a Republican appointee, has not said publicly whether he wished to marry his partner. But he told reporters that he never considered his sexual orientation grounds for declining to preside over the Proposition 8 challenge.

Ware’s decision also stressed that the ruling on Proposition 8 or any constitutional matter is of concern for all citizens. The “single interest” Walker shared with the same-sex couples who challenged Proposition 8 “gave him no greater interest in a proper decision on the merits than would exist for any other judge or citizen,” Ware said.

Kate Kendell, head of the National Center for Lesbian Rights, said the ruling “made clear that personal characteristics such as sexual orientation cannot be fodder for attacks on judges’ integrity.”

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