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Judge's sexual orientation clouds gay-marriage issue

Shortly after he retired, the federal judge who struck down California's voter-approved ban on same-sex marriage acknowledged publicly what had been rumored for months: He is gay and in a long-term relationship with another man.

Same-sex marriage opponents seized on Vaughn Walker's revelation and filed a motion late last month to have his ruling on Proposition 8 vacated, arguing he could benefit personally from his decision if he wanted to marry his partner.

Although unusual, the effort could have legal merit, some experts say. If successful, it could mark the first time a judge has been disqualified or rebuked for issues related to his sexual orientation. And it would be a setback for gay-rights groups, who view his opinion on Proposition 8 as one of their most significant victories in the quest for equal rights for same-sex couples.

It is generally held that judges may not be removed because of their religion or minority status, but experts say Proposition 8's backers have come up with a novel strategy that reignites a complex, emotional debate.

In the 1960s and '70s, many people questioned whether female or black judges could fairly decide sex- or race-discrimination cases, said Stephen Gillers, a law professor at New York University who teaches legal ethics.

"Appellate courts quickly and correctly held that a judge's sex and race have no bearing on the ability to decide cases impartially," Gillers said. "Now we're seeing the issue arise based on sexual identity, because the idea of a gay judge is, for many, new."

As recently as 1998, an Asian-American judge sanctioned two attorneys who asked that he be removed from a case in part because of his ethnicity.

In Walker's case, those challenging his ruling say they are not taking issue with his sexual orientation, nor do they think a gay person would be unfit to preside over the case. The issue, they say, is that Walker could directly benefit from his ruling and that he should have disclosed in court whether he intended to marry.

To many, no matter how nuanced the argument, it amounts to one thing: an attempt to discredit a judge simply because he is gay.

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