Appeal planned after gay marriage ban upheld in Calif - CBS News 8 - San Diego, CA News Station - KFMB Channel 8

Appeal planned after gay marriage ban upheld in Calif

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In this photo taken Wednesday, July 8, 2009, Judge Vaughn Walker is seen in his chambers at the Phillip Burton Federal Building in San Francisco, Calif. In this photo taken Wednesday, July 8, 2009, Judge Vaughn Walker is seen in his chambers at the Phillip Burton Federal Building in San Francisco, Calif.
Attorney Austin Nimocks, representing the sponsors of Prop. 8, speaks during a news conference at the Phillip Burton Federal Building in San Francisco, Monday, June 13, 2011. Attorney Austin Nimocks, representing the sponsors of Prop. 8, speaks during a news conference at the Phillip Burton Federal Building in San Francisco, Monday, June 13, 2011.

SAN FRANCISCO (AP) — The sponsors of California's same-sex marriage ban are planning to appeal a federal judge's decision that his predecessor had no obligation to divulge that he was in a long-term relationship with another man when he struck down the ban.

Lawyer Charles Cooper, who represents the conservative religious coalition that put the ban on a 2008 ballot, said he disagrees with the ruling Tuesday in San Francisco by U.S. Chief District Judge James Ware.

Ware upheld former Chief Judge Vaughn Walker's ruling from last year that struck down Prop. 8. Ware found Walker could not be presumed to have a personal stake in the case just because he has a same-sex partner.

Cooper says the appeal is intended to defend the will of Californians to preserve marriage as the union of a man and woman.

THIS IS A STORY UPDATE. For AP's earlier story, read below.

SAN FRANCISCO (AP) — A federal judge on Tuesday upheld a gay judge's ruling that struck down California's same-sex marriage ban, noting that his fellow jurist could not be presumed to have a personal stake in the case just because he was in a long-term relationship with another man.

In a 19-page ruling, Chief U.S. District Judge James Ware said former Chief Judge Vaughn Walker had no obligation to divulge whether he wanted to marry his own gay partner before he declared last year that voter-approved Proposition 8 was unconstitutional.

Ware called it the first case in which a judge's same-sex relationship had led to calls for disqualification. He said there probably were similar struggles when race and gender were the issues.

The ruling does not settle the legal fight over Proposition 8. The 9th U.S. Circuit Court of Appeals is considering whether Walker properly concluded that denying gays and lesbians the right to marry violates their rights to due process and equal protection.

In his ruling, Ware cited previous cases dealing with women and minority judges in concluding that his predecessor had acted appropriately.

"The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification," he wrote.

Lawyers for backers of the ban argued at a hearing Monday that Walker should have recused himself or disclosed his relationship because he and his partner stood to personally benefit from the verdict.

Walker publicly revealed after he retired in February that he is in a 10-year relationship with a man. Rumors that he was gay had circulated before and after he presided over the trial in early 2010.

Ware crisply rejected the idea that judges who are members of minority groups have more of a vested interest in the outcome of civil rights cases based on the U.S. Constitution than anyone else.

"We all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right," Ware wrote. "The single characteristic that Judge Walker shares with the plaintiffs, albeit one that might not have been shared with the majority of Californians, gave him no greater interest in a proper decision on the merits than would exist for any other judge or citizen."

Many legal scholars had not expected Ware to overturn Walker's decision. They said having a judge's impartiality questioned because he is gay is new territory, but efforts to get female judges thrown off gender discrimination cases or Hispanic judges removed from immigration cases have failed.

Walker did not attend Monday's hearing on the matter.

Copyright 2011 The Associated Press.

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