Judge's Personal Life Debated After Gay Ruling

Associated Press + More

SAN FRANCISCO — The federal judge who overturned California's same-sex marriage ban this week is a Republican who once came under fire for his membership to a powerful all-male club that had only recently allowed blacks to join.

But after Chief U.S. Judge Vaughn Walker struck down the voter-approved ban known as Proposition 8, he became something else in the minds of some: a gay activist.

Rumors have circulated for months that Walker is gay, fueled by the blogosphere and a San Francisco Chronicle column that stated his sexual orientation was an "open secret" in legal and gay activism circles.

Walker himself hasn't addressed the speculation, and he did not respond to a request for comment by The Associated Press on Thursday. Lawyers in the case, including those defending the ban, say the judge's sexuality — gay or straight — was not an issue at trial and will not be a factor on appeal.

But that hasn't stopped a public debate that exploded in the wake of the 66-year-old jurist's ruling. Most of the criticism has come from opponents of same-sex marriage.

"Here we have an openly gay federal judge, according to the San Francisco Chronicle, substituting his views for those of the American people and of our Founding Fathers who, I promise you, would be shocked by courts that imagine they have the right to put gay marriage in our Constitution," said Maggie Gallagher, chairwoman of The National Organization for Marriage, a group that helped fund Proposition 8.

In response, the Gay and Lesbian Victory Fund, a political action committee for gay candidates, launched an online petition accusing Gallagher's group of "gay-baiting."

But the debate raises the question: Why is sexuality different from other personal characteristics judges posses? Can a female judge rule on abortion issues? A black judge on civil rights?

"The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal," Walker wrote in his exacting, 136-page opinion.

Gerard Bradley, a law professor at the University of Notre Dame, published a Fox News column in the hours before Walker filed his opinion faulting the media for not forcing Walker to address his sexual orientation.

And Byran Fischer, issues director for the American Family Association, urged the group's members to contact their congressional representatives about launching impeachment proceedings because Walker had not recused himself from a case in which "his own personal sexual proclivities utterly compromised his ability to make an impartial ruling."

William G. Ross, an expert on judicial ethics and law professor at Samford University in Alabama, said that a judge's sexual orientation has no more relevance to his or her ability to rule fairly on a case involving gay marriage than it would for a deeply religious judge or a judge who had been divorced multiple times.

"Under the logic of the people challenging the judge's fitness to rule on a case involving gay rights because he or she was gay, one would have to find a eunuch to serve on the case, because one could just as easily argue that a heterosexual judge couldn't rule on it either," Ross said.

Months before Walker struck down Proposition 8 as an unconstitutional violation of gay Americans' civil rights, members of the team defending the ban in court had complained about what they perceived as judicial bias.

Over their vigorous objections, Walker pushed to have the proceedings televised live, a plan the U.S. Supreme Court quashed at the last minute. Then, he refused to excuse as a witness a Proposition 8 supporter who had compared gays to child molesters during the 2008 campaign. Lawyers for the two same-sex couples who sued to invalidate the ban had called him as a witness to try to prove the measure was fueled by anti-gay prejudice.

Nevertheless, the defense does not plan to raise the specter of the judge's sexual orientation as they appeal his ruling to the 9th U.S. Circuit Court of Appeals, said Jim Campbell, a lawyer with the defense team.