SAN FRANCISCO - A U.S. 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 struck down California's same-sex marriage ban, known as Proposition 8, last year, 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.
Chief U.S. District Judge James Ware heard the case Monday, taking over since Walker has retired.
Ware, an African-American judge nominated to the bench by George H.W. Bush, sharply questioned Charles Cooper, the attorney 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 pointed out that while Walker was in a long term relationship, there was no evidence that he wanted to marry.
Theodore Boutrous, an attorney for the same sex couples, called the attempt to vacate the ruling offensive.
"Their motion is targeting Judge Walker's sexual orientation, no matter how they try to camouflage it," Boutrous said.
Walker retired from the bench earlier this year. Shortly afterward he discussed his homosexuality in the press for the first time, saying he is in a 10-year relationship with a physician.
Opponents of gay marriage then filed legal papers asking that Walker's ruling be vacated. Because Walker could be impacted by his own decision, he had a duty to disclose his relationship or recuse himself from the case, gay marriage opponents argued in court filings.
However, attorneys for two gay couples challenging the ban say Walker's relationship should have no bearing on the case. If it did, African-American and women judges could similarly be prevented from hearing civil rights cases, they said in filings.
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.
The case in U.S. District Court, Northern District of California is Perry v. Schwarzenegger, 09-2292.
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