A COURT IN California is deciding whether or not the judge who struck down a ban on same-sex marriage in the state was in a position to make the ruling, because he is in a relationship with a man.

US District Judge Vaughn Walker ruled the ban- known as Proposition 8 – to be unconstitutional last year. Critics of gay marriage say he should have disclosed his ten year homosexual relationship before he presided over the challenge to Prop 8 reports the Los Angeles Times.

The San Francisco Chronicle reports that there were sharp exchanges in the courtroom today as lawyers for Proposition 8 argued that Judge Walker, who has since retired, should have recused himself from the case or disclosed his relationship. However the judge presiding over the appeal asked why Walker should declare his relationship if there was no evidence that he ever intended to marry his partner. Walker, who is openly gay, did not discuss his sexual orientation until his retirement.

In court today the presiding Judge James Ware said that they fact Waker had a serious relationshiop did not “put him in the shoes of what the plaintiffs were doing, unless you cite to me some facts that he was desirous of the relief they were seeking”. The plaintiffs Ware was referring to are two same-sex couples who successfully sued to overturn Prop 8 in Walker’s court.

Theodore Boutrous Jr., part of the legal team representing the gay couples, called the effort to disqualify Walker “frivolous, offensive and deeply unfortunate.” He derided Cooper’s assertion that it was Walker’s relationship status, not his sexual orientation, that called his impartiality into question.

“It’s not some news flash that Judge Walker was in a same-sex relationship,” Boutrous said. “They are targeting Judge Walker because he is gay.”

Judge Ware has indicated that he will issue a ruling within 24 hours.

Many legal scholars have said they do not expect Ware to overturn Walker’s decision. They point out that while having a judge’s impartiality questioned because he is gay is new territory, efforts to get women judges thrown off gender discrimination cases or Hispanic judges removed from immigration cases have failed.

Ware also heard arguments on whether he should prohibit Walker from using videotaped recordings of the trial in public speeches. Cooper, said that Walker’s post-retirement use of the recordings violated a U.S. Supreme Court ruling barring the trial from being broadcast beyond the federal courthouse in San Francisco.

Lawyers for the gay couples that sued to overturn the ban and for the news media are asking Ware to now make those recordings public.

Ware said he would issue a written ruling at a later date but suggested he was disinclined to prevent his former colleague from making personal use of the videos.

Ware said Walker had been given the videos as a parting gift during a “passing the gavel” ceremony.

“It was done under my auspices. Technologists of the court presented him with a copy of the videotape for his personal possession, so I want to disclose that in case you wish to make an argument that somehow having presided over that event … I should recuse myself,” he said.

- Additional reporting by AP