Gay rights groups oppose challenge to Prop. 8 judge

(AP file photo)(AP file photo)

(AP file photo)(AP file photo)

Four gay rights and civil liberties groups urged a federal appeals court Tuesday in San Francisco to reject a claim that the gay judge who overturned Proposition 8 should have disqualified himself.

The groups filed a friend-of-the-court brief with the 9th U.S. Circuit Court of Appeals opposing a challenge by the sponsors of Proposition 8 to U.S. District Judge Vaughn Walker.

Walker, who is now retired, struck down California's voter-approved ban on same-sex marriage last year.

The sponsors of the measure contend Walker should have stepped down from handling the case because he is in a long-term gay relationship and may have wanted to marry.

They have asked the appeals court to nullify his ruling on the ground that Walker's situation created either a conflict of interest or an appearance that he might not have been impartial.

In Tuesday's filing, the American Civil Liberties Union, the National Center for Lesbian Rights and two other groups contend that argument is part of “an ugly history to disqualify judges on the basis of their personal characteristics.”

“The notion that a gay judge could not fairly preside over this case is incorrect and offensive, and, if accepted by the courts, would be damaging to the credibility of the judiciary itself,” the groups said.

The appeals court “should reject any such notion, just as previous federal courts have rejected efforts to disqualify judges based on race, national origin, and sex,” the organizations argued.

In addition to the ACLU of Northern California and the National Center for Lesbian Rights, both based in San Francisco, the groups filing the brief are Equality California, which has offices in San Francisco and Los Angeles, and New York-based Lambda Legal.

The appeals court has not set a date for hearing the initiative sponsors' argument that Walker should have disqualified himself.

In that claim, the sponsors are appealing a decision in which U.S. District Judge James Ware ruled in June that Walker was not required to step down from the case.

The sponsors have also filed a general appeal of Walker's decision overturning the 2008 voter initiative.

That appeal is on hold while the California Supreme Court decides whether state law gives an initiative's sponsors the right to defend it on appeal when the governor and state attorney general refuse to do so.

The state high court's decision on that issue is due by Dec. 5, after which the general appeal will return to the federal appeals court.

In the meantime, the gay and lesbian marriage ban remains in effect because Walker's decision has been stayed during the appeal.

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