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Posted on www.advocate.com
By Andrew Harmon

A federal judge in San Francisco will hear arguments today as to whether the landmark Proposition 8 decision by U.S. chief district judge Vaughn R. Walker should be thrown out because the now-retired jurist did not disclose his same-sex relationship.

Chief Judge James Ware, who is handling remaining trial-level issues concerning the Prop. 8 case following Walker's retirement earlier this year, will hear arguments at 9 a.m. Pacific Time at the Phillip Burton Federal Building & United States Courthouse in San Francisco.

Supporters of Proposition 8 have argued that Walker's unequivocal August ruling striking down the ballot measure as unconstitutional should be vacated because he did not disclose his long-term relationship when randomly assigned the case.

Upon Walker's disclosure of his relationship in an interview with Reuters, proponents of the ballot measure that stripped California's gays and lesbians of the right to marry have argued that there is "a reasonable basis for concern that Judge Walker has a direct and substantial personal interest in the outcome of the case and that his impartiality could reasonably be questioned."

But the legal team led by attorneys Ted Olson and David Boies, who successfully argued against Prop. 8, has called the move "an utterly baseless attack on the integrity of the judicial system, on then-Chief Judge Walker, and on all gay and lesbian jurists who faithfully perform their duties and decide cases across this country each day."

"In fact, under [Prop. 8 supporters'] reasoning, African-American and female judges would have been required to recuse themselves in the most important civil rights cases in American history, … and all judges would be required to disclose their most private thoughts and relationships in order to preside over any case that involves constitutional rights they might conceivably want to secure for themselves and their families," Olson wrote in a May reply brief. "That is not the law—and our Nation is much the better for it."

A phalanx of legal observers agree and expect Ware to deny the Prop. 8 supporters' motion.

"[T]o listen to the supporters of Proposition 8, everyone in society, regardless of sexual orientation, is affected by marriage equality. A central argument against allowing gays and lesbians to marry has been that it will harm the institution of marriage," University of California-Irvine School of Law's founding dean, Erwin Chemerinsky, wrote in an April op-ed for The Advocate. "This seems a silly argument, but it certainly means that there is no judge who would be unaffected by the constitutionality of Proposition 8."

The hearing comes one day after the 44th anniversary of the 1967 Supreme Court decision in Loving v. Virginia, which struck down state anti-miscegenation laws (see video below).

Check back on Advocate.com for updated reports on today's hearing. Real-time coverage of the hearing also can be found on the American Foundation for Equal Rights' website.