Arguing that the judge who struck down California's ban on same-sex marriage was not impartial, because of his failure to disclose his own long-term gay relationship, the sponsors of Proposition 8 asked a federal judge in San Francisco on Monday to throw out all parts of the ruling and any earlier orders in the famous case. The motion to vacate the ruling by now-retired U.S. District Judge Vaughn R. Walker can be read here. Since Walker retired, the case has been taken over for any further action in U.S. District Court in San Francisco by the chief judge there, James Ware. The new filing by the Proposition 8 backers said they would seek permission from the Ninth Circuit Court – where Walker's ruling is now under review – for Judge Ware to rule on their new challenge. With the case pending in the Circuit Court, that judge may not have the authority to act without permission. This was the latest effort by the measure's supporters to challenge Judge Walker; they have pending in the Circuit Court a request to block any further public release of the videotape of the trial in his court, contending that he has wrongly made public portions of that recording, which is now under seal after the Supreme Court blocked public broadcasting of the trial itself. (Meanwhile, the two same-sex couples who successfully challenged Proposition 8 on Monday filed their reply in the Circuit Court on the videotape release issue. They argued that the proponents have produced no evidence that anyone on their side of the case has been intimidated after public disclosure of what went on in the trial.) In the new maneuver, the opponents of same-sex marriage relied upon comments that Walker had made in April, after his retirement, to a group of reporters, acknowledging publicly for the first time that he had been engaged in a ten-year same-sex relationship with a doctor. The motion asserted that the opponents were "not suggesting that a gay or lesbian judge could not sit on his case." Rather, they argued that Judge Walker had a personal interest in the outcome of the case, because he may wish to marry his partner if Proposition 8 no longer exists. At a minimum, the motion argued, he should have disclosed that relationship and whether he has any interest in marriage so that the parties in the case could evaluate whether to formally demand that he step aside under federal laws governing such disqualifications. To help bolster their argument that Walker's impartiality is clearly open to question, the motion listed a series of actions that he had taken during the progress of the case, and then commented: "The unprecedented, irregular, and/or peremptory nature of these rulings is difficult – very difficult – to take as the product of an objective, impartial judicial mind." While conceding that judicial rulings by themselves almost never amount to a valid basis for a disqualification demand, these rulings, it said, "are nevertheless highly relevant to the inquiry" under federal law. Technically, the proposed order that the opponents filed with their motion would have Judge Ware declare that he "would grant" the motion to wipe out the ruling, so that the opponents could then go to the Circuit Court and ask it to send the current appeal back to him for that purpose. At the Circuit Court, aside from the pending motion to permanently seal the videotape of the trial, the case is in an inactive state while the Circuit Court panel awaits a ruling – not expected until this Fall at the earliest – from the California Supreme Court on an issue of California state law that may influence whether the Proposition 8 backers' appeal against the Walker ruling can proceed. Of course, if the motion to vacate were ultimately granted, that would end the case, although an appeal of that would surely be pursued by the two same-sex couples who filed the successful challenge to Proposition 8.
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