District Judge Vaughn Walker handed down a potentially historic victory for the gay rights movement when he invalidated California's gay marriage ban last August. His ruling is being appealed and if the case reaches the Supreme Court, as is likely, the final decision will have profound implications.

But supporters of the ban are now charging that Vaughn's ruling should be thrown out because he is gay and was in a longterm relationship when he struck down the ban. Chief U.S. District Judge James Ware challenged that argument in court today, pressing lawyers on when a judge's background represents compromises impartiality.

If a reasonable person thought a black judge should recuse himself from a civil rights case, that would be sufficient to recuse the judge? Ware, who is African American, asked Charles Cooper, the attorney defending California's marriage ban.

Theodore Boutrous, an attorney for the same sex couples who first sued to overturn the ban, called the argument for invalidating Vaughn's ruling discriminatory.

Their motion is targeting Judge Walker's sexual orientation, no matter how they try to camouflage it, Boutrous said.