No on Prop. 8 sign, Creative Commons

Last August, Chief U.S. District Judge Vaughn Walker, who is now retired, presided over the same-sex marriage dispute. At the time, Walker had not explicitly disclosed his sexual orientation, although he is openly gay, and that he is in a long-term relationship.

By ruling in favor of the party which challenged Prop. 8, supporters of the measure say Walker’s sexual orientation and long-term relationship status made him automatically biased because he could potentially benefit from his decision.

One conservative sponsor of Prop. 8, ProtectMarriage, argued Walker’s sexual orientation alone would not disqualify him from presiding over a same-sex marriage case, but if he wanted to marry his partner of 10 years, he might have a personal interest in the case, according to the Los Angeles Times.

In April, Walker told reporters about his sexual orientation, but the San Francisco Chronicle had mentioned the fact that Walker is gay previously during the trial.

The Los Angeles Times said they asked ProtectMarriage to comment on Walker’s sexual orientation during the trial, but the group declined.

Many legal ethics experts said there is no problem with gay and lesbian judges presiding over gay-rights cases, but there may be a conflict of interest if the judge is trying to marry his or her partner.

However, the other side of that position points to the possibility that a heterosexual judge may have a personal interest in protecting his or her definition of marriage.

Campaign signs and slogans for Prop. 8 invoked the message that heterosexual marriages and traditional families needed to be protected from non-traditional forms of marriage; Prop. 8 slogans included “Protect Marriage” and “Restoring Marriage and Protecting California Children.”

The San Francisco Chronicle quotes Monroe Freedman, a Hofstra University law professor who is a legal ethics expert saying that Prop. 8’s campaign advertising suggests “any heterosexual has a problem (judging the case) because his or her marriage or future marriage is threatened…because the children are threatened.”

Another law professor said in his online legal ethics forum that whether Walker had a conflict of interest in the Prop. 8 case depended on several factors.

“The fact that Walker is gay has no bearing on his ability to sit. The fact that he is in a long term same sex relationship does not, by itself have a bearing. But if he and his partner want to marry in California and only Prop. 8 stood in their way he violated the recusal rule,” said Stephen Gillers of NYU Law.

The recusal rule is when a judge must disqualify himself or herself from presiding over a case where he or she would be partial.

Walker’s ruling against Prop. 8 is now in the process of appeal with the Ninth Circuit U.S. Court of Appeals. In the meantime, his decision has been suspended.

In March, California Attorney General Kamala Harris called for state courts to immediately restore the right for same-sex couples to marry. Harris also said an appeal to Walker’s decision is unlikely to be overturned.

Harris said in a March press release that as long as Walker’s ruling of Prop. 8 as unconstitutional is suspended, “the due process and equal protection rights of same-sex couples will continue to be violated, perpetuating unconstitutional discrimination…”

A federal judge will hear the motion June 13.