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Attorneys Face Off Over Impartiality of Judge Who Ruled Against Prop 8

Rainbow Flag in Downtown Los Angeles Prop 8 Protest
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A three-judge panel of the U.S. 9th Circuit Court of Appeals heard arguments yesterday about whether last year's decision that Proposition 8 violates the rights of gays and lesbians should be thrown out because the judge who authored the ruling is gay.

Former Chief U.S. District Judge Vaughn R. Walker, who's now retired, revealed after deciding the case that he's been in a same-sex relationship for ten years. Walker never said he wanted to marry his partner, and didn't get married during the brief window of time that it was legal in California (following his own ruling).

Still, lawyers defending Prop 8 told the panel that Walker should have told the court about his intentions with his partner as if he were a young Southern gentleman seeking the approval of his lady's parents, because there might have been reason to question his impartiality.

“One of the facts Judge Walker was obligated to disclose is whether or not he had an interest in marrying his partner,” [attorney Charles] Cooper said, according to the New York Times. “He didn’t.”

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That's despite the fact that Walker's successor, Chief U.S. District Judge James Ware, upheld Walker's decision and also said that Walker indeed did not have to reveal his sexuality, or whether he wanted to marry his partner.

"It is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings," Ware ruled, according to CNN.

The three-person panel seemed to agree with Ware yesterday, reports the LA Times, and delivered some clever smackdowns accordingly:

"So a married judge could never hear a divorce?" asked Judge Michael Daly Hawkins.

"What about an unmarried heterosexual judge who wants to maintain the definition of marriage?" asked Judge N. Randy Smith. "Does he have to disclose that?"

The panel is expected to make its decision by next year, although representatives for both sides seem fairly certain that the case will be appealed all the way up to the Supreme Court.