Legal hearing to determine if gay judge had conflict of interest
Protesting proposition 8 before its overturn by Judge Walker. / Image: Fibonacci Blue/Flickr/CC BY/

A retired judge and his sexual orientation will be the subject of a court hearing today in San Francisco. The case has no direct legal predecessor. Critics say its precedent would be a dangerous one, and proponents state it is a simple case of conflict of interest.

Proposition 8 ruled unconstitutional

Vaughn Walker is the federal judge who ruled last August that California’s same-sex marriage ban, a.k.a. Proposition 8, is unconstitutional. News and internet speculation over Walker’s sexuality abounded during the trial. Walker’s statement last February about his long-term relationship with a man has ended that speculation. Chief U.S. District Judge James Ware has scheduled a hearing to determine if the overturning of Proposition 8 should itself be overturned, based on the supposition that Walker may have had a personal stake in the decision.

Conflict of interest

Lawyers for the backers of Proposition 8 say that Walker, before ruling on the case, should have disclosed his relationship and recused himself based on a conflict of interest.

“The motion is all about the fundamental principle that a judge really can’t sit to hear their own case when they have an interest in the outcome,” said attorney Andrew Pugno. “Walker’s 10-year same-sex relationship creates this unavoidable impression that he was just not the impartial judge that the law requires.”

Pugno maintains that it is not Walker’s sexuality on trial, but the fact that he was in a long-term, same-sex relationship.

‘Frivolous’ and ‘demeaning’

Ted Olson, one of the lawyers defending Walker’s decision, says the move to overturn Walker is “frivolous” and “demeaning.” Alluding to the Mormon church actively campaigning for Proposition 8, Olson said: “What would a judge do who was Mormon knowing the Mormon Church took such an active role?” Walker continued, “What would a judge who had a nephew or niece or son or daughter who was gay or lesbian do? We have an unlimited number of permutations of what a judge might be asked to disclose.”

Other precedents exist

Other legal experts point out that, while a judge’s impartiality has never before been questioned due to sexual orientation, similar cases do exist. Earlier efforts to disqualify female judges in gender discrimination cases have failed, as well as bids to disqualify Hispanic judges in cases dealing with immigration.

‘Not one scintilla of evidence’

“There is absolutely not one scintilla of evidence that the fact of who he is biased him against the proponents,” says gay rights activist Kate Kendell. “We cannot be about assuming that simply because a judge is of a certain sexual orientation, race or gender, he or she is incapable of actually doing the job of a judge.”

An ‘insulting accusation’

University of California Hastings Law School Professor Rory Little says, “The immediate reaction is, ‘Oh, he’s gay, of course he ruled for the gay people.’ That’s kind of like saying, ‘Well, he’s black and of course he ruled for the black people.’ It really is a sort of insulting accusation… It begins to look like an act of desperation. Rather than fighting the case on the merits, they’re looking for procedural reasons to challenge it.”



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