- Associated Press - Tuesday, June 14, 2011

SAN FRANCISCO — A federal judge on Tuesday upheld a gay judge’s ruling that struck down California’s same-sex marriage ban, noting that his fellow jurist could not be presumed to have a personal stake in the case just because he was in a long-term relationship with another man.

In a 19-page ruling, Chief U.S. District Judge James Ware said former Chief Judge Vaughn Walker had no obligation to divulge whether he wanted to marry his own gay partner before he declared last year that voter-approved Proposition 8 was unconstitutional.

Judge Ware called it the first case in which a judge’s same-sex relationship had led to calls for disqualification. He said there probably were similar struggles when race and gender were the issues.

The ruling does not settle the legal fight over Proposition 8. The 9th U.S. Circuit Court of Appeals is considering whether Judge Walker properly concluded that denying gays and lesbians the right to marry violates their rights to due process and equal protection.

In his ruling, Judge Ware cited previous cases dealing with female and minority judges in concluding that his predecessor had acted appropriately.

“The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification,” he wrote.

Lawyers for backers of the ban argued at a hearing Monday that Judge Walker should have recused himself or disclosed his relationship because he and his partner stood to benefit personally from the verdict.

Judge Walker publicly revealed after he retired in February that he is in a 10-year relationship with a man. Rumors that he was gay had circulated before and after he presided over the trial in early 2010.

Judge Ware crisply rejected the idea that judges who are members of minority groups have more of a vested interest in the outcome of civil rights cases based on the U.S. Constitution than anyone else.

“We all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right,” he wrote. “The single characteristic that Judge Walker shares with the plaintiffs, albeit one that might not have been shared with the majority of Californians, gave him no greater interest in a proper decision on the merits than would exist for any other judge or citizen.”

Many legal scholars had not expected Judge Ware to overturn Judge Walker’s decision. They said having a judge’s impartiality questioned because he is gay is new territory, but efforts to get female judges thrown off gender-discrimination cases or Hispanic judges removed from immigration cases have failed.

Judge Walker did not attend Monday’s hearing on the matter.