Lawyers target CA gay marriage ruling by gay judge

SAN FRANCISCO — Lawyers trying to salvage California's same-sex marriage ban posed an unprecedented argument Monday involving the gay federal judge who threw out the measure last year.

They insisted that then-Chief U.S. District Judge Vaughn Walker should have divulged whether he wanted to marry his own gay partner before he cleared the way for others to marry theirs.

The challenge sparked sharp exchanges at a hearing before another federal judge who said he would decide within 24 hours whether to overturn the landmark ruling that came after two gay couples sued to stop voter-approved Proposition 8.

"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.

Chief U.S. District Judge James Ware, who inherited the Proposition 8 case from the now-retired Walker, asked why Cooper assumed Walker had any intention of getting married, just because he was in a decade-old relationship.

"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.

Cooper conceded he did not know Walker's outlook on marriage. Still, he insisted the judge's failure to reveal the relationship until 10 months after his ruling made his silence suspect and his marriage plans an appropriate subject of inquiry.

During the lengthy back-and-forth that followed, Ware asked: "So if a reasonable person thought a black judge should recuse himself from a civil rights case, that would be enough?"

Cooper replied: "No, your honor."

Ware asked why not.

"A reasonable person would not consider that black judge, any more than a white judge, for that reason alone someone biased or impartial," the lawyer said.

"I agree with you," Ware said. "Our test of reasonableness in our country will not allow us to discriminate on the basis of race, gender or sexual orientation."

Theodore Boutrous Jr., part of the legal team representing the gay couples who filed the lawsuit, called Cooper's arguments "frivolous, offensive and deeply unfortunate."