Judges question Prop. 8 appeal

SAN FRANCISCO, Dec. 9 (UPI) -- Sponsors of California's ban on same-sex marriage say the judge who ruled the measure unconstitutional should have been disqualified because he is homosexual.

A lawyer for Proposition 8's backers argued Thursday in the 9th U.S. Circuit Court of Appeals in San Francisco former Chief U.S. District Judge Vaughn Walker should have disclosed his personal stake in the outcome of his own ruling, the San Francisco Chronicle reported.

"So a married judge could never hear a divorce?" Judge Michael Hawkins was quoted as asking.

Proposition 8 attorney Charles Cooper said Walker's longtime relationship with a man would raise an "obvious question" of whether he would get married if he had the right to do so. Judge N. Randy Smith asked Proposition 8 backers whether a married judge could handle a divorce case and if the judge would be required to disclose marital difficulties.

Judge Stephen Reinhardt said Cooper's position might also disqualify married heterosexual judges from considering Proposition 8 because backers of the measure argued same-sex marriage would weaken traditional marriage.

The November 2008 ban on same-sex marriage added a provision to the California Constitution declaring "only marriage between a man and a woman is valid or recognized in California."

Walker overturned the measure in August 2010, ruling it violated both the due process and equal protection clauses of the U.S. Constitution.