Same-sex marriage hearing focuses on gay judge

Updated at 4:21 p.m. ET

SAN FRANCISCO - A federal judge's long-term relationship with another man was the subject of an unprecedented court hearing Monday that sparked sharp exchanges about whether the now-retired jurist had a duty to divulge whether he wanted to marry his own gay partner before he struck down California's same-sex marriage ban.

Lawyers for backers of the voter-approved ban asked Chief U.S. District Judge James Ware to vacate a decision issued by his predecessor last year that declared Proposition 8 an unconstitutional violation of gay Californians' civil rights.

They maintained that former Chief Judge Vaughn Walker should have recused himself from the case or disclosed his relationship because he and his partner stood to personally benefit from the verdict.

"It now appears that Judge Walker, at the time the complaint was filed and throughout this litigation, occupied precisely those same shoes as the plaintiffs," attorney Charles Cooper said.

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Ware sharply questioned Cooper on why he assumed Walker had any intention of getting married just because he was in a decade-old relationship.

If the judge did not wish to marry, Ware suggested, his situation would have been different from the two same-sex couples who successfully sued to overturn the ban in Walker's court.

"I'm asking you to tell me what fact you would have the court rely on to suggest that Judge Walker wanted to change, not maintain his relationship?" Ware asked.

The mere fact that Walker had a serious relationship "does not put him in the shoes of what the plaintiffs were doing, unless you cite to me some facts that he was desirous of the relief they were seeking," Ware said.

Theodore Boutrous Jr., part of the legal team representing the gay couples, called the effort to disqualify Walker "frivolous, offensive and deeply unfortunate." He derided Cooper's assertion that it was Walker's relationship status, not his sexual orientation, that called his impartiality into question.

"It's not some news flash that Judge Walker was in a same-sex relationship," Boutrous said. "They are targeting Judge Walker because he is gay."

Ware revealed at the hearing's outset that he had presided at a same-sex marriage during the brief period in 2008 when the ceremonies were legal in the state.

He said he planned to issue a written ruling within the next day. He said the matter raised important questions and called it the first case in which a judge's same-sex relationship had led to calls for disqualification.

"There was probably the same kind of struggle when race or gender were the issue," Ware said.

Walker publicly revealed after he stepped down in February that he is in a 10-year relationship with a same-sex partner. Rumors that he was gay had circulated before and after he presided over the trial in early 2010.

Many legal scholars have said they do not expect Ware to overturn Walker's decision. They point out that while having a judge's impartiality questioned because he is gay is new territory, efforts to get women judges thrown off gender discrimination cases or Hispanic judges removed from immigration cases have failed.

Ware also heard arguments on whether he should prohibit Walker from using videotaped recordings of the trial in public speeches. Cooper, said that Walker's post-retirement use of the recordings violated a U.S. Supreme Court ruling barring the trial from being broadcast beyond the federal courthouse in San Francisco.

Lawyers for the gay couples that sued to overturn the ban and for the news media are asking Ware to now make those recordings public.

Ware said he would issue a written ruling at a later date but suggested he was disinclined to prevent his former colleague from making personal use of the videos.

Ware said Walker had been given the videos as a parting gift during a "passing the gavel" ceremony.

"It was done under my auspices. Technologists of the court presented him with a copy of the videotape for his personal possession, so I want to disclose that in case you wish to make an argument that somehow having presided over that event ... I should recuse myself," he said.