Litigation

Debate Brews Over Prop. 8 Judge

By Peter Hardin

After a San Francisco newspaper reported that federal district Judge Vaughn Walker, presiding over the California trial about same-sex marriage, is gay (see Gavel Grab), some conservative voices are calling for him to step aside from the case, while others are saying his sexual orientation is irrelevant.

Matt Barber of Liberty Counsel, a nonprofit group, said in a statement in Catholic Online, ?Any decision favoring plaintiffs in this case will be permanently marred and universally viewed as stemming from Judge Walker?s personal biases and alleged lifestyle choices. For these reasons, and in the interest of justice, Judge Walker should do the honorable thing and immediately recuse himself.?

In National Review Online, Ed Whelan wrote, “Given his manifest inability to be impartial, Walker should have recused himself from the beginning, and he remains obligated to do so now.”

But Erwin Chemerinsky, founding dean of the University of California, Irvine Law School, concluded in a commentary for The Advocate that “his sexual orientation is a private matter and irrelevant to his hearing the case.” Walker was appointed to the bench by then-President George H.W. Bush, his views about marriage equality are not known, and “he has the reputation of being a conservative, though perhaps libertarian, judge,” the law scholar wrote.

For that matter, if Walker’s views were well known, it wouldn’t require his disqualification, Chemerinsky added. He pointed to the known views of Supreme Court Justices Scalia and Ruth Bader Ginsburg if they were asked to overrule Roe v. Wade, and contended no one would suggest their views would require disqualification.

Ruth Marcus, in a Washington Post column, maintained that Walker ought “to be free to hear the case,” and that she hoped plaintiffs challenging California’s same-sex marriage ban would prevail. But if she were on the other side and the ban were struck down by a supposedly gay judge, she acknowledged, “I’d have some questions about whether the judicial deck had been stacked from the start.”

Full post as published by The Gavel on February 11, 2010 (boomark / email).