Dealing another legal setback to anti-gay marriage forces, the Bay Area’s chief federal judge on Tuesday rejected arguments that a former colleague’s same-sex relationship rendered him biased when he struck down California’s ban on same-sex nuptials last year.

In a 19-page ruling, Chief U.S. District Judge James Ware refused to set aside former Chief Judge Vaughn Walker’s ruling invalidating Proposition 8, concluding that a judge can fairly decide a struggle over gay rights even if he is gay and involved in a long-term relationship.

Ware disagreed with Proposition 8’s sponsors, who maintained that Walker had an inherent bias because he stood to gain the right to marry if the voter-approved ban on same-sex marriage was wiped off the books.

“The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief,” Ware wrote.

“On the contrary,” he continued, “it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits.”

Opposition response

Proposition 8 backers vowed to appeal the decision.

“The (Proposition 8) legal team obviously disagrees with (the) ruling,” attorney Charles Cooper said. “Our legal team will appeal that decision and continue our tireless efforts to defend the will of the people “… to preserve marriage as the union of a man and a woman.”

Gay-rights advocates blasted the effort to disqualify Walker from the case because of his 10-year relationship with a male doctor, saying it was an act of desperation.

“Gay judges, lesbian judges, are entitled to the same fairness and impartiality presumptions as all other judges,” said Theodore Boutrous Jr., a lawyer for same-sex couples.

The 67-year-old Walker, who retired this year, declined to comment. Ware inherited the Proposition 8 case when Walker stepped aside as chief judge.

Last month, Proposition 8 lawyers moved to erase Walker’s decision, which found that the proposition violated the equal protection rights of gay and lesbian couples. They argued that Walker should have disclosed his relationship when he was randomly assigned to the case, and that he was presumed biased because he was in the “same shoes” as the couples suing to overturn the law.

Walker, long known to be gay in the Bay Area legal community, publicly acknowledged the relationship in a February meeting with reporters, but insisted it was irrelevant to his ability to judge the case fairly.

Among other things, Ware concluded there is no evidence Walker has any desire to marry, and the mere possibility he might someday have the right to do so is too speculative to establish bias. He warned that requiring judges to make such private disclosures poses an unnecessary threat to the judiciary’s integrity.

“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 reason to disqualify Walker, Ware said.

Walker’s ruling invalidating Proposition 8 is now on appeal, tied up in questions over whether Proposition 8 supporters have a legal right to defend the voter-approved state law when the governor and attorney general refuse to press the appeal.

There is some question now whether Proposition 8 lawyers will be able to immediately appeal Ware’s order, or if they will have to await the outcome of the central appeal to determine their rights to proceed in the appeals courts.

Experts called it

Most legal experts have predicted from the outset that the attempt to disqualify Walker and set aside his ruling would fail.

“So much for one of the most frivolous motions filed in federal court this year,” Richard Painter, a University of Minnesota law professor and former top ethics lawyer for President George W. Bush, wrote in his ethics blog.

But another ethics expert, Stephen Gillers, a New York University School of Law professor, said that though Ware’s ruling was correct overall, Walker should have disclosed his relationship when he inherited the case and given Proposition 8 backers a chance to confront him earlier about potential conflicts. “If he had revealed it, we would have saved a lot of time and doubt about the validity of the ruling,” he said.

Vikram Amar, a UC Davis law professor, called it “complicated when you’re talking about disclosing really intimate things.”

“That’s a lot to ask of a judge,” he said.

Contact Howard Mintz at 408-286-0236.