Proposition 8 Judge Was Biased, Not Impartial Due To His Sexualtiy

From The Sacramento Bee and Alliance Defense Fund:


Irate Prop. 8 backers say gay judge not impartial

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By Peter Hecht

phecht@sacbee.com

Published: Friday, Aug. 6, 2010 - 12:00 am
Page 9A

Last Modified: Friday, Aug. 6, 2010 - 5:19 pm

After Vaughn Walker was nominated for the federal court in 1987, gay activists took issue with his role as a lawyer for the U.S. Olympic Committee who successfully sued to bar a San Francisco sports festival from calling itself the "Gay Olympics."



After Walker issued a landmark ruling Wednesday that overturned California's Proposition 8 ban on gay marriage, his detractors took issue with the fact that the judge is gay.



As the topic stoked Internet and talk radio chatter, some blasts aimed at the presiding judge of the U.S. District Court of Northern California in San Francisco were direct and personal.



"Judge Walker should have recused himself from this case since he is a practicing homosexual," wrote Bryan Fischer of the American Families Association. He added: "His own personal sexual proclivities utterly compromised his ability to make an impartial ruling in this case."



Some religious conservatives began calling for Walker to recuse himself after San Francisco Chronicle columnists Philip Matier and Andrew Ross reported in February that "the biggest open secret in the landmark trial over same-sex marriage … is that the federal judge … is himself gay."



But is the judge's sexual orientation relevant?



Larry Levine, a professor at McGeorge School of Law in Sacramento, said judges of all races and creeds are legally bound to render impartial verdicts. He said Walker's only reverence was to the law.



"I think it's profoundly offensive to suggest that a judge who is not of the sexual orientation of the majority or the race of the majority or the religion of the majority is unfit to hear cases," he said.



"Are they saying that an African American judge can never rule on an affirmative action case and a Muslim can never rule on a case dealing with religious expression? If you follow their logic, that's exactly what they're saying."



Maggie Gallagher of the anti-gay-marriage National Organization for Marriage released a statement after the ruling saying, "The 'trial' in San Francisco … is a unique episode in American jurisprudence. Here we have an openly gay … federal judge substituting his views for those of the American people and of our Founding Fathers."



Chapman University law professor John Eastman, a recent Republican candidate for state attorney general and a former clerk for Supreme Court Justice Clarence Thomas, said he disagreed with Walker's ruling.



He said the judge's sexual orientation could be an issue if Walker and a romantic partner stood to benefit from overturning the marriage ban.



"If there's an appearance he has a substantial interest in the outcome, that is sufficient for him to be required to disclose it," Eastman said.



University of California, Davis, law school professor Courtney Joslin, who teaches a course in sexual orientation and the law, said both sides got a fair hearing before Walker.



Joslin said Walker's 136-page decision, in which he declared that "moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians," reflected the legal determination of a seasoned jurist – not of an advocate for gay marriage.



"A judge's duty is to consider the evidence and rule impartially," Joslin said. "Judge Walker's ruling is extremely careful and meticulous."



Eastman said being gay alone is no disqualifier for Walker handling such a case.



"Every judge has their own life experiences they bring to the table. There is nothing inappropriate about that," he said. "And they have all kinds of ideological predispositions about the appropriate role of the judiciary. That kind of bias doesn't require them to recuse themselves."



Earlier, Matt Barber of the Liberty Counsel, a Lynchburg, Va., group opposing gay marriage, accused Walker of displaying "extreme bias in favor of his similarly situated homosexual activist plaintiffs."



Levine said such charges are often groundless – no matter which judge presides over a case. "Judges professionally and ethically are assigned to apply the law," he said. "The idea that white male heterosexual Christian judges don't have any bias is equally absurd. Either they (opponents of the Proposition 8 ruling) are saying all judges are biased and no one is fit to judge, or they're saying judges are fit to follow the law. Which is it?"



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