Hearing Opens on a Gay Judge's Prop. 8 Decision

Lawyers argue that Judge Walker's sexuality represents a conflict of interest

Update 3 (3:08 p.m. EDT): Tech writer Moya Watson, who has been live-Tweeting the hearing, says Judge Ware promises to release a decision within 24 hours online "so you can move beyond this." Hearing is adjourned.

Update 2 (2 p.m. EDT): ThinkProgress reports that one of the questions at issue in today's hearing has been settled: Videotapes of the arguments before Vaughn Walker, which the proponents of Prop. 8 had sought to have recalled and destroyed, will remain in circulation. As we noted back in April, the National Organization for Marriage filed a motion to halt Walker from showing the video during speaking engagements in his retirement.

Update (1:25 p.m. EDT): According to myriad tweets from journalists and others at the hearing, the argument has come down to an expected comparison between race and sexuality. According to the Bay Citizen's Katherine Mieszkowski, Ware asked attorney Charles Cooper (who is arguing for a reinstatement of Prop. 8), "If a reasonable person thought a black judge should recuse himself from a civil rights case, that would be sufficient?"

In a few minutes, Judge James Ware will hear one of the more unusual cases to come before the federal Ninth Circuit Court of Appeals in San Francisco in a very long time. Lawyers arguing for the reinstatement of a voter-approved ban on same-sex marriage are due to make their case for overturning Judge Vaughn Walker's August 2010 ruling striking down California Proposition 8 because he disclosed earlier this year, after he retired, that he has been in a long-term relationship with a man. Prop. 8 supporters have said this represents a conflict of interest, according to the Associated Press:

Lawyers for the sponsors of the voter-approved ban are asking the chief federal judge in San Francisco to vacate the decision issued by his predecessor last year that declared Proposition 8 an unconstitutional violation of gay Californians' civil rights. They maintain that former Chief Judge Vaughn Walker should have recused himself or disclosed his relationship status before trial because he and his partner stood to personally benefit from Walker's verdict.

They are not expected to convince Judge Ware. Most analysts now say the law's supporters won't have an easy time persuading an appeals judge to overturn that decision based solely on the sexuality of the decision-maker. Opponents of the same-sex marriage ban, voted into law in 2008, successfully argued before Judge Walker that the measure denied basic civil rights to some members of the state's population. The supporters of Prop. 8 have said Walker's sexuality meant he couldn't make an impartial decision. It's an argument The Atlantic's Andrew Cohen called "the worst legal argument of the year." Cohen has an involved and enlightening sports analogy for why the argument is so bad, but the Associated Press's explanation for why it will likely fail is simple:

Many legal scholars have said they do not expect Ware to overturn Walker. They point out that while a having a judge's impartiality be questioned because he is gay is new territory, efforts to get women judges thrown off gender discrimination cases or Hispanic judges removed from immigration cases have failed.

Proponents of Prop. 8, for their part, were optimistic, according to the AP:

In a fundraising appeal to Proposition 8's supporters Friday, Ron Prentice, chairman of the religious coalition that qualified the gay marriage ban for the November 2008 ballot, said, "We are much more hopeful for success with a judge presiding over the case who has greater respect for legal precedent and the rule of law."

As reporters, legal scholars, and gay rights activists focus their attention on the Federal Building in San Francisco, most expect today's verdict to be, as Cohen says, "the tumbling of yet another wall of prejudice in the life of the law."