SAN FRANCISCO, DEC 8 - A U.S. appeals court appeared skeptical toward attempts by gay marriage opponents to overturn a landmark court decision because the judge overseeing the case did not disclose his own long-term homosexual relationship.
The three judge 9th Circuit panel also did not appear inclined on Thursday to release a video of a 2010 trial challenging California's gay marriage prohibition. They did not rule from the bench after more than two hours of oral arguments in San Francisco.
California voters banned same sex weddings in 2008 by approving so-called Proposition 8. But last year U.S. District Judge Vaughn Walker in San Francisco ruled the measure unconstitutional.
More than 40 U.S. states have outlawed same sex marriage, and the California challenge could have a national impact if the U.S. Supreme Court ultimately takes up the case.
Shortly after Walker retired earlier this year, he discussed his homosexuality in the press for the first time, saying he is in a 10-year relationship with a physician.
That led opponents of same-sex marriage to ask that Walker's ruling be vacated. Walker's relationship put him in the same shoes as the plaintiffs, and should have been disclosed when he was assigned to the case, their attorneys argued.
U.S. District Judge James Ware rejected that argument in June, and Prop 8 supporters appealed.
"So a married judge could never hear a divorce?" asked 9th U.S. Circuit Court of Appeals Judge Michael Daly Hawkins on Thursday.
Charles Cooper, an attorney for Prop 8 supporters, said he didn't see any problem with a married judge overseeing a divorce. But Walker had a duty to say whether he had an interest in getting married, Cooper said.
"He knew something that the litigants and the public did not know," he said.
Yet Judge N. Randy Smith, who was nominated by George W. Bush, prodded Cooper on the high degree of deference the appellate court must give to Ware in this case.
Ware's findings have to be "illogical, implausible and without support, isn't that true?" Smith asked.
David Boies, an attorney for the two couples challenging California's ban, said Walker did nothing wrong. A ruling to the contrary would subject judges in minority groups to a double standard, he said.
"If something is irrelevant, you don't have to disclose it," Boies said.
The 9th Circuit panel also heard arguments on whether to release a video recording of the 2010 trial. Ware has already authorized its release, but the 9th Circuit put that decision on hold pending appeal.
Gay marriage opponents are fighting disclosure of the recording, and all three judges on Thursday pointed out that Walker had explicitly stated that the video would not be made public.
"There was a promise by the judge that it would not be released," said Judge Stephen Reinhardt, a Democratic appointee regarded as one of the 9th Circuit's most liberal members.
The appellate panel previously heard arguments on the core constitutional issues in the case, and it can rule at any time.
The appeals concerning the trial video and Walker's relationship in the 9th Circuit are Perry v. Brown, 11-17255 and 11-16577.
For Perry et al: Theodore Olson and Theodore Boutrous of Gibson, Dunn & Crutcher; David Boies and Jeremy Goldman of Boies, Schiller & Flexner.
For proponents of Proposition 8: 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)
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