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Prop. 8 ruling: gay judge didn't need to recuse himself

Backers of California's anti-gay marriage initiative, Prop. 8, argued that the judge who declared the law unconstitutional should not have taken the case because he is gay. A federal judge rejected that argument Tuesday.

Judge Vaughn Walker sits in his chambers at the Phillip Burton Federal Building in San Francisco in this July 8, 2009, file photo. Sponsors of Prop. 8, California's voter-approved same-sex marriage ban, unsuccessfully argued that his ruling overturning Prop. 8 should be tossed out because he did not disclose he was in a long-term relationship with another man.

Paul Chinn/San Francisco Chronicle/AP/File

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A US judge refused to vacate a decision last year that declared California's anti-gay marriage Proposition 8 unconstitutional. Backers of Prop. 8 had wanted the decision thrown out on the grounds that the judge who made the decision is gay and therefore should have recused himself from the case.

Chief US District Judge James Ware said that requiring a gay judge to recuse himself from a case about gay marriage would have set a dangerous precedent.

“The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself,” wrote Judge Ware.

The decision means the ruling of US District Judge Vaughn Walker remains in effect. Prop. 8 backers have appealed that ruling to the Ninth Circuit Court of Appeals. Ultimately, the case could end up before the Supreme Court, many legal analysts say.

Lawyers for the sponsors of Prop. 8, which declared that marriage should be between only one man and one woman, argued that Judge Walker stood to gain personally from his own verdict. Walker revealed the a 10-year relationship with another man publicly after stepping down in February.

But Theodore Olson, a lawyer for two same-sex couples who sued to overturn Prop. 8, argued that expecting judges to reveal portions of their private lives when hearing gay-rights cases could open a Pandora's box.

“What would a judge do who was Mormon, knowing the Mormon Church took such an active role” in campaigning for Prop. 8, Mr. Olson asked, according to the Associated Press. “What would a judge who had a nephew or niece or son or daughter who was gay or lesbian do? We have an unlimited number of permutations of what a judge might be asked to disclose.”


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