A federal appeals court plans to announce whether it thinks California's same-sex marriage ban violates the civil rights of gays and lesbians, and if the trial judge who struck down the voter-approved measure should have revealed he was in a long-term relationship with another man.
The 9th U.S. Circuit Court of Appeals said a three-judge panel was ready to publish its long-awaited opinions Tuesday on the ban and on the possible conflict-of-interest by former Chief U.S. Judge Vaughn Walker, who ruled that Proposition 8 did not pass constitutional muster.
Walker presided over the first trial in federal court to examine if same-sex couples have a constitutional right to get married.
Even if the 9th Circuit panel agrees with him and overturns the ban approved by voters in November 2008, same-sex marriages are unlikely to resume in California any time soon. Supporters and opponents of Proposition 8 have said they would appeal to the U.S. Supreme Court if they lose in the intermediate court.
Some legal observers believe the written heads-up the court gave Monday indicates it concluded there is no reason why Walker should have disclosed his relationship status while he had the case.
"The notice appears to indicate that the panel will rule on the constitutionality of Proposition 8. That seems to suggest that the court will deny the effort by Prop 8 proponents to vacate Judge Walker's ruling on recusal grounds, and also that it will find that the Prop. 8 proponents had standing to pursue the appeal,'' University of Pennsylvania Law School Professor Tobias Barrington Wolff said.
The panel heard arguments on the ban's civil rights implications more than a year ago but delayed a decision while it sought guidance from the California Supreme Court on whether Proposition 8's sponsors had legal authority to challenge Walker's ruling after the governor and state attorney general decided not to appeal it.
The California court ruled in November that the state's vigorous citizens' initiative process grants official proponents of ballot measures the right to defend their initiatives in court if state officials refuse to do so.
Further complicating the 9th Circuit's consideration was a move in April by lawyers for the coalition of religious conservative groups that put Proposition 8 on the ballot have Walker's ruling vacated because of the now-retired judge's same-sex relationship.
Walker's successor as the chief federal judge in Northern California, James Ware, rejected arguments that Walker was unqualified to preside over the 13-day trial that because he stood to personally benefit from declaring Proposition 8 unconstitutional.
The 9th Circuit held a hearing on that question in December.