Tuesday February 9, 2010

San Francisco Chronicle: “Open Secret” That Prop. 8 Judge is “Gay”

By Peter J. Smith

SAN FRANCISCO, February 9, 2010 ( – In what he describes as “an open secret,” a columnist for the San Francisco Chronicle says that the federal judge presiding over the case against California’s Proposition 8 identifies as a homosexual.

The revelation now raises questions over whether Chief Justice Vaughn Walker of the U.S. District Court for California’s Northern District should recuse himself in the federal trial against Prop. 8, California’s ban on homosexual “marriage.”

Chronicle columnists Phillip Matier and Andrew Ross write: “Many gay politicians in San Francisco and lawyers who have had dealings with Walker say the 65-year-old jurist, appointed to the bench by President George H.W. Bush in 1989, has never taken pains to disguise – or advertise – his orientation.”

Andy Pugno, general counsel for the Prop. 8 campaign, told the columnists that his group had no intention “to say anything about that.” But Pugno did add that supporters for Prop. 8 “have been put at significant disadvantage throughout the case” by Walker’s handling of the trial “regardless of the reason for it.”

Matier and Ross claim they spoke with a federal judge describing himself as Walker’s friend and confidant, who said he believed Walker would remain impartial in any event. The judge said he had spoken with Walker, who “doesn’t think [his sexual orientation] is relevant to his decisions in any case, and he doesn’t bring it to bear in any decisions.”

However, the source admitted, knowledge of Walker’s background as a homosexual is relevant to his involvement in a same-sex “marriage” case. He said the situation is not dissimilar to people needing to know that a Latino judge was presiding over a discrimination case involving Latinos, or that a Jewish judge was trying a case involving the Anti-Defamation League.

Ed Whelan, President of the Ethics and Public Policy Center, writes in the National Review Online blog “The Corner” that Walker’s alleged homosexuality is not the issue: a homosexual jurist could rule impartially, he says, and a heterosexual judge could entertain biases either for or against Prop. 8 that would demand his recusal.

The real question hangs upon whether the jurist is “capable of ruling impartially,” and that question, Whelan argues, has already been answered by Walker’s behavior both before and throughout the trial.

“From the outset, Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors,” writes Whelan.

Whelan points out that Walker violated federal judicial guidelines by initially allowing the broadcast the Prop. 8 trial. Though Walker justified the move under a “pilot program” reportedly designed with the Prop. 8 trial in mind, the US Supreme Court intervened to prohibit the videotaping.

The privacy guideline, instituted to protect witnesses from visual identification and harassment, bears unusual import for the emotionally-charged trial: just before the ruling, one of the pro-family interveners asked to be dismissed from the case, citing the increased threats he and his family would endure in their native San Francisco under video-taped proceedings.

Whelan notes that Walker was again rebuked by a panel of the 9th Circuit Court of Appeals for delving into the internal memos of the Prop. 8 campaign, deemed a violation of freedom of association guaranteed by the First Amendment. Walker said he was attempting to determine whether Prop. 8 was “passed with animus” – an impossible feat, Whelan says, given that 7 million voters approved the marriage amendment.

Finally, Whelan accused Walker of exposing his partiality in the case by allowing “a parade” of anti-Prop 8 witnesses to give lengthy testimony at trial “that had no conceivable bearing on any factual or legal issues in dispute but who provided useful theater for the anti-Prop 8 cause.”

“Walker’s entire course of conduct has only one sensible explanation: that Walker is hellbent to use the case to advance the cause of same-sex marriage,” Whelan concludes. “Given his manifest inability to be impartial, Walker should have recused himself from the beginning, and he remains obligated to do so now.”

Read Ed Walker’s Commentary at NRO: Judge Walker’s Skewed Judgment

Read related coverage by

Emotional Prop 8 Trial Draws to an End

Supreme Court Blocks Recording of Prop. 8 Trial

Federal Court Upholds Protection of Yes on Prop. 8 Campaign Docs

Poll: Majority of Americans Wants U.S. Supreme Court to Reject Same-Sex “Marriage”

Video Shows Gay ‘Marriage’ Backers Terrorizing Cross-Carrying Elderly Woman and Reporter