Supporters of Proposition 8, California’s ballot-approved ban on same-sex marriage, filed a motion this week contesting Judge Vaughn Walker’s ruling that the ban is unconstitutional, because he’s gay man who may have wished to marry his partner.
In August of last year, Judge Walker, now retired, ruled that the 2008 voter initiative banning gay marriage is unconstitutional, because Prop 8 “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”
In a filing with the District Court on Monday, the “Yes On 8” campaign argued that Walker should have recused himself from presiding over the case because he has a longtime same-sex partner — whom he may someday wish to marry. This, the filing says, means that Walker went against “the judiciary’s strict fidelity to the ancient maxim that ‘no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.’”
“Given that Chief Judge Walker was in a committed, long-term, same-sex relationship
throughout this case (and for many years before the case commenced),” the filing said, “it is clear that his ‘impartiality might reasonably [have been] questioned’ from the outset’.”
The “Yes On 8” campaign also emphasized that it’s not that they’d object to every gay or lesbian judge from presiding over the case — only those that may want to get married one day.
The filing asks for Judge Walker’s ruling to be vacated.
Walker confirmed to reporters in early April that he is gay. He said then that he never considered recusing himself from the trial: “If you thought a judge’s sexuality, ethnicity, national origin (or) gender would prevent the judge from handling a case, that’s a very slippery slope.”
“I don’t think it’s relevant,” he said.
“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,” Jon Davidson, legal director for Lambda Legal, told the San Jose Mercury News .