UPDATED: Chief Judge James Ware said he could rule as early as Tuesday on whether his predecessor, Vaughn Walker, should have told both sides at the outset of the case he is gay. The opponents of gay marriage have asked for a new trial, to re-litigate Walker’s decision striking down California’s ban on gay marriage. They argue that because Walker said after trial that he has been in a 10-year relationshi with another man, the judge had a stake in the outcome. Walker has retired but before he left he invalidated voter initiative Proposition 8, which banned same-sex marriage.
Charles Cooper, lawyer for opponents of same-sex marriage said that Walker’s long-term relationship had to be for the purpose of marriage and thus should have been disclosed. But Ware repeatedly grilled Cooper about how he could know the purpose of the relationship was marriage.
“A reasonable person could conclude that Walker was interested in marrying his long-term partner,” Cooper said. But Ware again quizzed Cooper on what facts he could rely on for that assumption.
Theodore Boutrous, attorney for homosexual couples seeking to overturn Prop. 8, called the effort to overturn Walker’s decision and seek a retrial “frivolous, deeply offensive and unfortunate.”
Boutrous argued that the only purpose of the move was because Walker is gay and that’s not a legitimate reason to remove him from the case.
Ware said he intended to limit his review to whether Walker should have recused himself as soon as he was assigned the case and would not look at videotapes to review the judge’s fairness in conducting the trial.
California voters approved the marriage ban in Proposition 8 in 2008. This was in reaction to the California Supreme Court held that same-sex marriage may be allowed. A challenge to Prop. 8 followed but state officials never stepped in to defend it. So it was left to sponsors of the measure to step in to defend the ban. Walker ruled against them and now the case has gone to the 9th U.S. Circuit Court of Appeals. Then came Walker’s confirmation of his sexual orientation and the issue of a re-trial was opened.
A second issue Monday was whether the video recordings made of the trial should be returned by the parties who have copies and whether they should be released to the public. Ware did not take up the question of public release and has indicated he would not release them for now. And after brief arguments he declined to ask for tapes back from the plaintiff side.
The tapes were created after Walker agreed to limited live broadcast of the trial to a few federal courtrooms and law schools to allow wider public access to the proceedings. The U.S. Supreme Court slammed the door on that, ordering Walker not to broadcast farther than two overflow rooms within the courthouse. (Federal courts generally do not allow cameras, unlike many state courts.)
Walker complied but he continued to record the proceedings and now media organizations have asked that they be released to the public. Although he took a set of tapes with him when he retired, he voluntarily returned the tapes when the objection was filed.
Case: Perry v. Schwarzenegger, C09-2292JW