Judge James Ware heard two hours of arguments in federal court Monday. Lawyers who want Judge Vaughn Walker's decision overturning the voter-approved ban on same-sex marriage argued he has a conflict of interest because he is in a long-term relationship with another man.
"Judges have a duty not only to apply the law without bias but to do so in a way that avoids even the appearance of impropriety," said Austin Nimocks of ProtectMarriage.com.
But lawyers for Prop 8 supporters could not provide any evidence that Walker wanted to get married, only that he was in a long-term relationship.
"Chief Judge Ware asked Mr. Cooper for the evidence to support their claim," said plaintiffs' attorney Theodore Boutros. "He asked him several times and Mr. cooper was not able to provide the answer."
"We have to presume that as a public official he followed the law, and if he thought there was a problem, he would have disclosed it," said ABC7 News legal analyst Dean Johnson.
Johnson says judges face a very strict conflict of interest statute, but race and gender are not in themselves a basis for disqualifying a judge.
"We're hopeful that Chief Judge Ware will make clear that gay judges, just like all other judges, are fair and impartial and adhere to their oaths," said Boutros.
"Judge Walker's decision must be vacated and reconsidered by a neutral judge who has no direct and substantial personal interest in the outcome and whose impartiality cannot be reasonably questioned," said Nimocks.
Ware said this will be the first time a same-sex relationship is the issue for considering disqualifying a judge.