Prop 8: Federal judge hears motion to vacate ruling striking down California’s gay marriage ban

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A Prop 8 opponent wears a gay pride flag on his back during a rally to celebrate the ruling to overturn Prop 8 August 4, 2010 in San Francisco.

A federal court in San Francisco Monday heard a motion to vacate last year’s ruling that struck down California’s Proposition 8. Supporters of the voter-approved ban on gay marriage say the judge who declared the California law unconstitutional should have recused himself from the case because of his long-term relationship with another man.

A few months after Judge Vaughn Walker ruled that Prop 8 violated the rights of gay Californians, he told reporters he’d maintained a committed relationship with another man for a decade.

Prop 8 attorney Austin Nimocks says Walker had a moral obligation to reveal his same-sex relationship at the start of the case. "Instead of revealing these facts to the parties and their counsel, Judge Walker kept them to himself even though the subject matter of the case presented an issue in which Judge Walker and his partner had a direct interest."

Attorneys for Prop 8 supporters argued in court that California Chief Justice James Ware should nullify his predecessor’s ruling because Walker had “occupied the same shoes” as the same-sex couples who challenged Prop 8.

But in the courtroom, Justice Ware countered that just because Walker was in a long-term relationship doesn’t prove he wanted to marry his partner.

The attorney for two same-sex couples, Theodore Boutrous, Jr., says Prop 8’s attorneys may “dress it up” any way they like, but they’re really challenging Walker’s ruling because the judge is gay. Boutrous predicts that won’t get them very far.

"This is a desperate 'Hail Mary' pass because they think they’re going to lose," says Boutrous. "Courts in race cases, gender cases, have rejected these arguments where litigants try to bounce a judge off a case when they’re unhappy with the result because the judge is from a minority group."

This is the first time attorneys have tried to nullify a court decision based on a judge’s sexual orientation. Legal experts have said the motion isn’t likely to succeed. Chief Justice Ware says he hopes to issue a decision on the matter in the next day or so.

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