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Judge in high-profile Prop 8 case is gay

SAN FRANCISCO (BP)–The federal judge in the California Proposition 8 “gay marriage” case apparently is himself a homosexual — a fact that has been known for months by attorneys involved in the case but one that only became public when it was discussed in a San Francisco Chronicle Sunday column.

The newspaper’s Phillip Matier and Andrew Ross said Judge Vaughn Walker’s sexual preference was the “biggest open secret” in the landmark trial, which could result in “gay marriage” being legalized in all 50 states. Walker, 65, is not married.

Walker’s homosexuality has been discussed on homosexual blogs ever since he was randomly assigned the case last summer, with many of them asking: Is it true? The attorneys defending Prop 8 in court had heard the rumors, too, and in interviews with reporters either refused to comment or said making it a big issue would not help their case. After all, they had little chance of getting a new judge.

The Chronicle’s Matier and Ross talked to Walker himself, asking him if he had any concerns about being characterized as gay.

“No comment,” Walker said.

But a federal judge who was unnamed subsequently contacted the Chronicle columnists, saying he had talked to Walker and was concerned “people will come to the conclusion that [Walker] wants to conceal his sexuality.”

“He has a private life and he doesn’t conceal it but doesn’t think it is relevant to his decisions in any case, and he doesn’t bring it to bear in any decisions,” the unnamed judge said.

The public revelation has both sides in the debate questioning whether it will impact the case’s outcome. Conservatives say that Walker — whether he is homosexual or not — already has sided with anti-Prop 8 attorneys in the case.

“We have no idea whether the report is true or not,” Brian Brown, executive director of the National Organization for Marriage, an organization that supports Prop 8, wrote in an e-mail to constituents. “But we do know one really big important fact about Judge Walker: He’s been an amazingly biased and one-sided force throughout this trial, far more akin to an activist than a neutral referee. That’s no secret at all.”

Walker’s Prop 8 court orders have been reversed twice by higher courts.

In December a U.S. Ninth Circuit Court of Appeals panel unanimously ruled that Prop 8 supporters did not have to release private internal e-mails and memos from their fall 2008 campaign, as Walker had instructed them to do. All three Ninth Circuit judges were nominated by President Clinton. Their opinion said Walker’s order would have had a “chilling” effect on First Amendment protections.

In January, the U.S. Supreme Court in a 5-4 decision indefinitely suspended Walker’s plan to allow the trial to be posted on tape-delay on sites such as YouTube.com, saying he did not allow for a sufficient opportunity for public comment and did not properly follow the rules.

“If courts are to require that others follow regular procedures, courts must do so as well,” the majority wrote.

The fact that Walker chose to turn the case into a full-blown trial — allowing witnesses and cross-examinations, for example — itself was controversial. Prior to Walker, courts decided “gay marriage” cases based on written materials: previous court rulings, scholarly journals, expert studies.

Passed by a margin of 52-48 percent, Prop 8 was a constitutional amendment that restored the traditional definition of marriage and overturned a California court ruling that had legalized “gay marriage.”

Ed Whelan, president of the Ethics and Public Policy Center and a former clerk to Supreme Court Justice Antonin Scalia, wrote in a blog at NationalReview.com that Walker’s actions have shown that he is intent “to use the case to advance the cause of same-sex marriage.” Walker should have recused himself, Whelan argued.

“I have no reason to doubt that there are homosexuals who could preside impartially over this case, just as I have no reason to doubt that there are heterosexuals whose bias in favor of, or against, same-sex marriage would unduly skew their handling of the case,” Whelan wrote. “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.”

But a San Francisco Chronicle editorial said something much different, arguing that Walker’s homosexuality “does not inherently shade his ability to read and interpret the U.S. Constitution with clear-eyed wisdom.”

“Assuming this case advances on appeal, no matter how Walker rules, there almost certainly will be jurists who will need to set aside their religion’s teachings — and, quite likely, the impact of their ruling on close friends or even a family member — as they do their utmost to uphold the meaning of the Constitution,” the editorial read.

The Wall Street Journal’s Ashby Jones, writing at the newspaper’s law blog, asked if the news about Walker’s homosexuality was significant and then answered, “Frankly, it’s hard to see how it’s not, especially if you believe that the opinions of judges, try as they might to divorce their personal opinions from their rulings, are invariably colored and informed by their own experiences, just like the rest of us.”

Similarly, the San Francisco Chronicle’s Debra J. Saunders wrote in an opinion piece, “The problem is that where there may not be a conflict of interest, there may be the appearance of conflict — and that matters, too. Many California voters already are fed up with imperious judicial rulings — and a majority of California voters approved Prop. 8. While Walker certainly did not have a legal obligation to recuse himself, it might have been better if he had let some other judge decide this case. It ultimately will be determined in higher courts anyway.”

Walker — nominated to the court by the first President Bush — heard more than two weeks of testimony in January. He currently is reading documents related to the case and will schedule closing arguments at a later date.
Michael Foust is an assistant editor of Baptist Press.

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