Ho­mo­sex­ual judge’s dis­clo­sure raises bias ques­tions

The Washington Times Weekly - - Politics - BY VA­LERIE RICHARD­SON

To hear them de­scribe it, de­fend­ers of tra­di­tional mar­riage dur­ing last year’s trial on Cal­i­for­nia’s Propo­si­tion 8 felt like the vis­it­ing team in a game with a home­town ref­eree.

It was an open se­cret that District Court Chief Judge Vaughn Walker was ho­mo­sex­ual, al­though he had never pub­licly ac­knowl­edged it. Un­der the cir­cum­stances, chal­leng­ing his ob­jec­tiv­ity in a case on the con­sti­tu­tion­al­ity of “one man, one woman” mar­riage car­ried sub­stan­tial risks, such as an­ger­ing the judge or be­ing ac­cused of “out­ing” a pub­lic fig­ure, with­out any prom­ise of suc­cess.

The cir­cum­stances changed when Judge Walker, now re­tired, was quoted in an April 6 ar­ti­cle by Reuters say­ing that he had been in­volved in a same-sex re­la­tion­ship for more than 10 years. Now tra­di­tional-mar­riage pro­po­nents are openly dis­put­ing the judge’s im­par­tial­ity, cul­mi­nat­ing in an April 25 mo­tion to throw out his de­ci­sion over­turn­ing Propo­si­tion 8.

The sit­u­a­tion has raised thorny is­sues over how much judges should be re­quired to dis­close about their per­sonal lives, and whether a judge’s iden­tity can be con­sid­ered a con­flict of in­ter­est. With a raft of law­suits in sup­port of same-sex mar­riage work­ing their way through the legal sys­tem, it may be only a mat­ter of time be­fore the Walker sce­nario re­peats it­self in an­other court­room.

The ho­mo­sex­ual-rights com­mu­nity has dis­missed the chal­lenges as a last-ditch at­tempt to skirt the judge’s de­ci­sion. Judge Walker ruled in Au­gust that Propo­si­tion 8 vi­o­lated the Cal­i­for­nia Con­sti­tu­tion’s equal-pro­tec­tion clause, but the 9th U.S. Cir­cuit Court of Ap­peals has placed a hold on the or­der un­til an ap­peal can be heard.

“They’re grasp­ing at straws. It’s truly des­per­a­tion at this point,” said Rick Jacobs, chair­man of the Courage Cam­paign in Sacra­mento.

Ho­mo­sex­ual-mar­riage sup­port­ers ar­gue that such a chal­lenge, if suc­cess­ful, would set a dis­crim­i­na­tory prece­dent. Bar­ring ho­mo­sex­ual judges from rul­ing in same-sex mar­riage cases would be equiv­a­lent to pre­vent­ing fe­male judges from rul­ing in abor­tion cases or black judges from de­cid­ing civil rights cases.

What’s more, they said, het­ero­sex­ual judges have per­haps as great a stake in the nation’s mar­riage laws as do their ho­mo­sex­ual coun­ter­parts.

“I could ar­gue that Judge Walker was the only judge suf­fi­ciently un­bi­ased to take the case be­cause he was the only judge who was un­mar­ried in that district,” Mr. Jacobs said. “The Propo­si­tion 8 side ar­gued that same-sex mar­riage would do ir­repara­ble harm to mar­riage. There­fore any­one who was mar­ried would be af­fected by this.”

Pro­po­nents of tra­di­tional mar­riage say their law­suit is di­rected at Judge Walker alone and not ho­mo­sex­ual judges in gen­eral. Be­cause Judge Walker lives in Cal­i­for­nia and has been in­volved in a long-term same­sex re­la­tion­ship, he had “an in­ter­est that could be sub­stan­tially af­fected by the out­come of the pro­ceed­ing,” ac­cord­ing to the mo­tion.

Un­der fed­eral law, the mo­tion ar­gues, Judge Walker should have re­cused him­self from the case or dis­closed his re­la­tion­ship and al­lowed at­tor­neys to de­cide whether to file for his re­cusal. Since he failed to do so, pro­po­nents say, the or­der strik­ing down Propo­si­tion 8 should be va­cated.

“We are not sug­gest­ing that a gay or les­bian judge could not sit on this case,” said Andrew Pugno, at­tor­ney for Pro­tec­tMar­riage.com. “Rather, our mo­tion is all about the fun­da­men­tal prin­ci­ple that no judge is per­mit­ted to try a case in which he has an in­ter­est in the out­come.”

Mr. Jacobs coun­tered that the judge didn’t need to strike down Propo­si­tion 8 in or­der to marry. close what’s in their hearts,” said Mr. Jacobs. “It’s an ab­surd over­reach.”

Pro­po­nents of Propo­si­tion 8 ar­gued that Judge Walker had demon­strated his hos­til­ity to the ini­tia­tive well be­fore the rul­ing.

He at­tempted to force Pro­tec­tmar­riage.com to turn over its con­fi­den­tial cam­paign doc­u­ments, an ef­for t that was

“I’ve never seen any­thing like it in terms of the bias Judge Walker showed from Day One,” said Na­tional Or­ga­ni­za­tion for Mar­riage Pres­i­dent Brian Brown. “We’ve seen the most egre­gious, bi­ased acts, which ba­si­cally turned this into a kan­ga­roo court, up un­til the end of the trial and then af­ter­ward.”

He sim­ply could have flown to Connecticut, for ex­am­ple, and mar­ried his part­ner un­der that state’s same-sex mar­riage law. Five states and the District of Columbia have le­gal­ized ho­mo­sex­ual mar­riage.

Al­low­ing at­tor­neys to quiz the judge on whether he planned to marry would put the ju­di­ciary on a “slip­pery slope,” he said. “Now we’re ask­ing judges to dis- stopped by the 9th Cir­cuit. His de­ci­sion to al­low a trial video­tape to be played out­side the court­room was like­wise over­turned, this time by the U.S. Supreme Court, which de­scribed his rul­ing as a ma­jor de­par­ture from the “ac­cepted and usual course of ju­di­cial pro­ceed­ings.”

Af­ter leav­ing the bench, Judge Walker played a sec­tion of the video­tape dur­ing a speech at the Univer­sity of Ari­zona, which was re­broad­cast by C-SPAN, even though the tape had been sealed. A mo­tion to have the video­tape re­turned and re­sealed was filed April 13.

“I’ve never seen any­thing like it in terms of the bias Judge Walker showed from Day One,” said Na­tional Or­ga­ni­za­tion for Mar­riage Pres­i­dent Brian Brown. “We’ve seen the most egre­gious, bi­ased acts, which ba­si­cally turned this into a kan­ga­roo court, up un­til the end of the trial and then af­ter­ward.”

Judge Walker has not com­mented on the mo­tion, but in the Reuters ar­ti­cle, he said fac­tors such as a judge’s sex­ual ori­en­ta­tion, eth­nic­ity and gen­der should not stop them from pre­sid­ing over cases.

He also noted that he was once the bane of the ho­mo­sex­ual com­mu­nity af­ter, as a lawyer for the U.S. Olympic Com­mit­tee, he tried to pre­vent a San Fran­cisco group from us­ing the name “Gay Olympics.”

The mo­tion to va­cate Judge Walker’s rul­ing is sched­uled to be heard July 11 in San Fran­cisco be­fore the judge’s re­place­ment, District Court Judge James Ware.

ASSOCIATED PRESS

Rul­ing on him­self? Judge Vaughn Walker is seen in his cham­bers at the Phillip Bur­ton Fed­eral Build­ing in San Fran­cisco, Calif. on Aug. 4, 2010.

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