SAN FRANCISCO, June 13 (Reuters) - A U.S. federal judge
sharply questioned foes of gay marriage Monday in a hearing
about whether a ruling by a homosexual judge in favor of
same-sex marriage should be thrown out.
U.S. District Judge Vaughn Walker in San Francisco last
year struck down California's same-sex marriage ban, known as
Proposition 8, and supporters of the ban now say he was biased
and his ruling should be vacated. The case was immediately
appealed to the 9th U.S. Circuit Court of Appeals.
The case could set national policy if it reaches the U.S.
Supreme Court and is being watched throughout the nation, where
same-sex marriage is legal in only a handful of states.
In a packed courtroom Monday, Chief U.S. District Judge
James Ware heard the case, taking over since Walker retired
earlier this year. About 30 people demonstrated outside the
courthouse in support of same-sex marriage before the hearing
began.
Ware, a black judge nominated to the bench by Republican
President George H.W. Bush, aggressively questioned Charles
Cooper, the lawyer defending California's marriage ban.
"If a reasonable person thought a black judge should recuse
himself from a civil rights case, that would be sufficient to
recuse the judge?" Ware asked.
"No, your honor," Cooper responded.
Ware also asked Cooper if a judge presiding over a sexual
assault trial should disclose intimate personal details --
including whether she had been raped.
The judge must disclose "any information" that might be
relevant to the parties or the lawyers, Cooper said.
Ware said he would like to issue a written ruling on the
matter within 24 hours.
'IN THE SAME SHOES'
Shortly after Walker retired, he discussed his
homosexuality in the press for the first time, saying he is in
a 10-year relationship with a physician.
Even though Walker is in a long-term relationship, there
was no evidence that he wanted to marry, Ware said Monday.
But Cooper said the fact of his relationship put him "in the
same shoes" as the two gay couples suing for the right to
marry.
Theodore Boutrous, a lawyer for the couples, called the
attempt to vacate Walker's ruling offensive.
"Their motion is targeting Judge Walker's sexual
orientation, no matter how they try to camouflage it," Boutrous
said.
Opponents of gay marriage are asking that Walker's ruling
be vacated, arguing that he had a duty to disclose his
relationship or recuse himself from the case.
Lawyers for the two gay couples challenging the ban say
Walker's relationship should have no bearing on the case. If it
did, black judges and women judges could similarly be prevented
from hearing civil rights cases, they said in court filings.
Ware said this is the first time a federal court has
addressed recusal involving a gay judge. He repeatedly stressed
the subject's importance.
If the facts supporting same-sex marriage are strong, Ware
asked, what would be the harm if Walker's ruling were set aside
and a different judge weighed in? Such a decision would set a
terrible precedent, Boutrous responded.
The 9th Circuit is still considering the constitutional
issues surrounding gay marriage, and it has asked the
California Supreme Court to weigh in on one point of state
law.
For Perry et al: Theodore Olson and Theodore Boutrous of
Gibson, Dunn & Crutcher; David Boies and Jeremy Goldman of
Boies, Schiller & Flexner.
For the gay marriage opponents: Charles Cooper, David
Thompson, Howard Nielson, Nicole Moss and Peter Patterson of
Cooper and Kirk; Andrew Pugno of the Law Offices of Andrew
Pugno; Brian Raum and James Campbell of the Alliance Defense
Fund.
(Reporting by Dan Levine)