same-sex marriage ban on Monday moved to wipe out last year’s ruling
that declared Proposition 8 unconstitutional, saying the federal judge
who heard the historic case should have stepped aside because he has
been in a long-term same-sex relationship.
In court papers, the Proposition 8 campaign argues that former Chief U.S. District Judge
gaining the legal right to marry his partner. Walker has never
concealed the fact he is gay and it has been well-known in
Walker could not be reached for comment Monday. But
he told reporters at his public session that he never considered
recusing himself from the case, saying his sexual orientation should
not be a factor in presiding over the legal challenge to the gay
marriage ban.
Gay marriage advocates quickly dismissed the legal
tactic as an act of desperation, while legal experts labeled the move a
long-shot that came too late and is no different than trying to bump a
female judge off a gender discrimination case or a black judge from a
racial bias lawsuit.
The 67-year-old Walker retired earlier this year and is moving into private law practice and a teaching position at the
The ruling is on appeal in both the
which is currently considering whether Proposition 8 supporters even
have a legal right to defend the law when the state’s top officials
refuse to do.
Proposition 8 supporters are specifically arguing
that Walker’s acknowledged long-term relationship with a doctor should
have been disclosed before the
because it would suggest he may have a personal interest in the right
to marry. In court papers, lawyers for gay marriage foes say Walker’s
rulings throughout the case were rife with bias, suggesting he did not
treat the legal arguments equally.
“Judge Walker’s 10-year-long same-sex relationship
creates the unavoidable impression that he was not the impartial judge
the law requires,” said
In court papers, Prop. 8 lawyers argue that Walker,
because he could have at any point decided he wanted to marry a
same-sex partner, “had a clear and direct stake” in the outcome of the
legal battle. “Such a personal interest in his own marriage would place
Chief Judge Walker in precisely the same shoes as the two couples who
brought the case,” Prop.8 lawyers wrote.
The issue will first be considered in July by Walker’s replacement, Chief Judge
who has inherited further proceedings in the Proposition 8 case. But
legal experts immediately cast doubt on the validity of the Proposition
8 campaign’s legal arguments.
“It frankly sounds like an act of desperation,” said
professor. “Their position is shot through with illogical jumps.” Among
other things, Little called it “disingenuous” for Proposition 8
supporters to portray Walker’s sexual orientation as a
“newly-discovered fact.” “They’ve obviously known Judge Walker was
gay,” he said.
law school, agreed that same-sex marriage foes waited too long to raise
the issue. “A litigant cannot wait to see the judge’s ruling and when
it loses decide it wants a new judge,” he said.
Gay marriage advocates immediately attacked the legal tactic.
“This reeks of a hail-Mary attempt to assail Judge
Walker’s character because they are unable to rebut the extremely
well-reasoned ruling he issued last year,” said
Monday’s move to erase the ruling is latest legal
salvo from the Proposition 8 campaign directed at Walker. In recent
court papers, Proposition 8 lawyers also targeted Walker for showing a
video clip of the trial at a lecture in
shot down Walker’s bid to broadcast the trial, but the judge used a
three-minute excerpt in a speech about televising court proceedings.
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