Judge in Prop 8 Case is Probably Gay: So What?

I’m a bit reluctant to blog about this story, because it seems like it should be a non-issue. However, it’s already been covered in places that get far more attention than our little corner of the Web, so I guess I’ll throw in some of my thoughts.

A column in the San Francisco Chronicle claims that it is something of an open secret that Vaughn Walker is gay.  Judge Walker is the chief Judge of the U.S. District Court for the Northern District of California, and is presiding over the trial which will ultimately determine if Proposition 8, which banned same-sex marriage in the state, is constitutional.

Apparently, in his private life, Judge Walker makes no effort to hide his sexual orientation, but does not advertise it, either. On the record, he consistently refuses to comment on the matter, which seems like a perfectly reasonable position to take: if it doesn’t affect his legal judgment, he has every right to keep it private. Indeed, by all accounts, Judge Walker is an independent, unbiased, and highly principled judge. He was appointed to the federal bench in 1989 by the first President Bush, and has been a reliably conservative jurist, though with a strong libertarian bent.

It’s also worth noting that Judge Walker did not seek out this case. It was assigned to him at random.  He also raised the ire of the gay community several years ago when, as a practicing attorney, he represented the U.S. Olympic Committee in its successful attempt to prevent the organization promoting an event called the “Gay Olympics” from using that name, on grounds that it would constitute trademark infringement, and under a law that gives the USOC the exclusive right to use the word “Olympic” in the U.S.

Suppose, however, that Judge Walker does find Proposition 8 to be unconstitutional. Whatever the result, the losing side is sure to appeal until it is finally resolved in the Supreme Court. Would Judge Walker’s sexual orientation be an issue on appeal? Opponents of Proposition 8 suspect that its supporters might claim that Judge Walker’s orientation created bias. On their part, lawyers for the proponents of Prop. 8 insist that they will not make an issue of this, regardless of the result.

But should we be concerned about potential bias? Probably not. After all, imagine if the case was being presided over by a straight judge, and the opponents of Prop. 8 claimed that he would be biased because of that fact. That argument would not even pass the laugh test.

Similarly, if an African-American judge were presiding over a case involving racial discrimination, or a Jewish judge heard a case to which the Anti-Defamation League was a party, there would probably not be any serious concerns of bias (or, at the very least, the judge’s race would not, by itself, raise the issue).

Unless there is some clear indication that Judge Walker’s sexual orientation has influenced his decisions, it should be a complete non-issue on appeal. And if the losing side attempts to raise it as an issue, the Court of Appeals should dismiss the argument outright.

It’s impossible for a judge to completely divorce his or her own views and experience from the decision-making process. However, most judges are aware of this fact, and do their best to minimize the effects of their personal biases on their judgment. Judges are human beings, and this is really the best we can ask for. Until we come up with a way for legal disputes to be solved by omniscient computers, we’re going to have to make do.