By Peter Henderson
SAN FRANCISCO (Reuters) - Proponents of California's gay marriage ban on Monday said a judge who struck down the law was biased because he is in a same-sex relationship himself, and that his ruling should be thrown out.
Former U.S. District Chief Judge Vaughn Walker last year ruled that California's same-sex marriage ban, known as Proposition 8, was unconstitutional. The case is being appealed and is expected to be pursued to the U.S. Supreme Court, potentially setting national precedent.
All but a handful of U.S. states explicitly ban same-sex marriage, and Californians in 2008 joined that club by approving Proposition 8, shocking gay rights advocates nationwide and prompting the current case.
In a motion to vacate the judgment filed Monday, proponents of the ban said that Walker's 10-year relationship, which he publicly disclosed after stepping down from the bench earlier this year, should have led him to avoid the Proposition 8 case, since he may want to marry.
"Surely, no one would suggest that Chief Judge Walker could issue an injunction directing a state official to issue a marriage license to him. Yet on this record, it must be presumed that that is precisely what has occurred," the motion reads.
"It is important to emphasize at the outset that we are not suggesting that a gay or lesbian judge could not sit on this case," it said.
Walker's sexual orientation was quietly commented on during the court trial, but lawyers on neither side made it an issue in the courtroom.
Walker in an April 6 discussion with reporters from Reuters and other news outlets said he had been in the decade-long relationship and that he had not considered recusing himself from the case.
It would not be appropriate for any judge's sexual orientation, ethnicity, national origin or gender to stop them from presiding over a case, he said at the time, adding, "That's a very slippery slope.
Theodore Boutrous, a lead lawyer challenging the ban, said in an e-mail that the proponents' motion is "absurd. In their view men couldn't hear cases about the rights of men, women couldn't hear cases about the rights of women. Their view is totally anti-gay."
Walker's former colleague, U.S. District Chief Judge James Ware, a Republican appointee like Walker, now will take up the issue.
The case is 09-CV-2292 in the Northern California U.S. District Court.
(Editing by Philip Barbara)