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BREAKING NEWS analysis: Judge James Ware proves combative at Proposition 8 hearing

Editor's note: This news analysis was completed utilizing the tweets by American Foundation for Equal Rights, which covered the hearing live.

SAN FRANCISCO – Chief Judge James Ware, in his first hearing since taking over the Proposition 8 case at district court, asked penetrating questions regarding the motion to overturn the historic decision that ruled the state law unconstitutional.

Ware, who was named chief judge after Judge Vaughn Walker retired earlier this year, quickly put the heat on Charles Cooper, the attorney for Prop. 8 supporters. Ware asked Cooper about recusal rules, and the attorney argued that Judge Walker should have declared that he was in a long-term, same-sex relationship and recused himself from the case.

But Ware didn’t seem to find much credibility in that argument, then asking Cooper how he could know if Judge Walker wanted to overturn Prop. 8 so that he could get married. “You can be in a long-term relationship without it being for the purposes of marriage,” Ware told Cooper.

Cooper replied: "There are platonic friendships that are long-term in nature that do not normally lead to marriage.” Observers in the courtroom burst into laughter.

Ware retorted: "What fact would you cite to the court that Judge Walker had an interest in changing his relationship [into a marriage]? … to say that he maintained a long-term relationship doesn’t put him in the shoes of what the plaintiffs were doing."

The judge also didn’t seem to buy into the argument that a gay judge had any more bias than a straight judge. He asked Cooper if a judge who had been sexually assaulted would be required to disclose her victim status in a case involving rape.

Theodore Boutrous Jr., attorney for the American Foundation for Equal Rights (AFER), which is leading the fight against Prop. 8, told Judge Ware that the motion was frivolous.

Boutrous said the motion targets Judge Walker’s sexual orientation and stereotypes by saying the Walker’s romantic relationship is indistinguishable from that of other gay people. He also said it was widely known that Walker was gay, but was never made an issue by Prop. 8 supporters during the initial trial.

To further emphasize his point, Boutrous quoted proponents from last year in which they said they wouldn’t raise sexual orientation as an issue.

The AFER attorney said proponents should have looked Judge Walker in the eye and discussed recusal at that time, not after he retired.

“You can’t lay in wait, lay in the weeds until you are disgruntled litigant and you’ve lost, and then raise these issues,” Boutrous said.

But Ware said he is not inclined to use timeliness as a basis of denying the motion to vacate the ruling.

Boutrous argued that judges cannot be recused for gender, religious affiliation or race. “We assume all federal judges are going to judge cases based on the law,” he said.

Regarding a second motion by Prop. 8 supporters to have videos of the trial kept from the public, Judge Ware ruled that he would deny that motion. Boutrous had argued that the videos were an important public record of the trial, not some “radioactive state secret” that should be hidden from the public.

Therese Stewart, who represents the City of San Francisco in the case, noted the irony of the defense trying to prove Judge Walker was biased, while at the same time trying to prevent the public from viewing the videos, show his fairness during the trial.

Judge Ware said he would likely rule on the motion to overturn the Walker decision soon, perhaps within 24 hours.

Ken Williams is Editor in Chief of SDGLN. He can be reached at ken@sdgln.com or by calling toll-free to (877) 727-5446, ext. 713.