Prop 8 Judge is Outed

by Kilian Melloy
Monday Feb 8, 2010

Chief U.S. District Judge Vaughn Walker, who will decide whether voter initiatives that target the rights of same-sex families violate the guarantees of equality laid out in the U.S. Constitution, is himself homosexual, a Feb. 7 article in the San Francisco Chronicle reported.

Walker's homosexuality is an "open secret," the article said, noting that Walker has never tried to conceal his orientation--though he has also never advertised it. The article added that Democratic lawmakers and gay politicians do not think that Walker is likely to allow his own orientation to influence his ruling unduly. Walker was appointed by George Bush, Sr., in 1989; he is seen as a conservative jurist.

"There is nothing about Walker as a judge to indicate that his sexual orientation, other than being an interesting factor, will in any way bias his view," Kate Kendell of the National Center for Lesbian Rights told the Chronicle. Kendell's organization favors the case against Proposition 8, a deeply divisive California ballot initiative that in 2008 rescinded the then-existing right of gay and lesbian families to marry when a thin majority voted for the proposal, which amended the state's constitution, following months of often acrimonious debate.

Added Kendell, "There wasn't anyone who thought (winning the case against Proposition 8) was a cakewalk given his sexual orientation."

Those sentiments were echoed by Mark Leno, a Democratic state Senator. Indeed, the article said, area gays recall Walker not for being gay so much as for representing the U.S. Olympic Committee in a case in which the Olympics tried to prevent the Gay Olympics from using "Olympics" in its name.

But although Democrats and gays see Walker as impartial (and even note that at one point in his career he had a reputation for being anti-gay), and though the side pressing for Proposition 8 to be upheld says that they will not make an issue of Walker's sexuality, the news provided a ready platform for anti-gay pundits, who pointed to Walker's decision to allow the trial to be broadcast on YouTube (later reversed by the U.S. Supreme Court), as well as Walker having ordered that internal memos from the defendants, who support Prop. 8, be made available to the plaintiffs (an order that was also overruled).

"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," claimed a Feb. 7 op-ed article at the National Review Online. "Consider his series of controversial--and, in many instances, unprecedented--decisions," the editorial went on. "Take, for example, Walker's resort to procedural shenanigans and outright illegality in support of his fervent desire to broadcast the trial, in utter disregard of (if not affirmatively welcoming) the harassment and abuse that pro-Prop 8 witnesses would reasonably anticipate."

The op-ed continued, "Take Walker's failure to decide the case, one way or the other (as other courts have done in similar cases), as a matter of law and his concocting of supposed factual issues to be decided at trial.

"Take Walker's insane and unworkable inquiry into the subjective motivations of the more than 7 million Californians who voted in support of Prop 8," the article added, going on to read, "Take Walker's permitting a parade of anti-Prop 8 witnesses at trial who gave lengthy testimony that had no conceivable bearing on any factual or legal issues in dispute but who provided useful theater for the anti-Prop 8 cause."

Declared the editorial, "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. Given his manifest inability to be impartial, Walker should have recused himself from the beginning, and he remains obligated to do so now."

Critics of Walker have said that the trial's focus on whether Proposition 8 was motivated by anti-gay bias was misplaced. Even if anti-gay animus lay behind the ballot initiative, they argue, it is not up to the courts to invalidate the result on that basis.

Others argue that the very issue of the constitutionality of Prop. 8 makes the issue central to the case.

The story was posted at Free, a right-wing chat site that frequently takes gay news as its topic of conversation. Postings at the site leapt to compare America's gays and lesbians to Nazis.

"This was a show trial. Goebbels would be smiling," read one posting.

"I guess if Hitler were a judge at Nuremberg, the Nazi's would have been found guilty as they were too, right?" posted another.

Meantime, gay site JoeMyGod offered editorial comments of its own. "The lead counsel for Protect Marriage says that his side does not intend to make an issue of Walker's sexuality should he rule against them. Riiiight," an item at the site read.

"Walker hasn't necessarily been considered a friend of the gays," noted the JoeMyGod article. "In 1987 he defended the U.S. Olympic Committee in its copyright lawsuit against Tom Waddell, the creator of the Gay Olympics who was dying of AIDS. Even after winning the case, Walker had a lien placed against Waddell's home in order to recoup the USOC's legal costs. Only after Waddell died was the lien lifted.

"The Gay Olympics case delayed Ronald Reagan's nomination of Walker to the federal bench," added the JoeMyGod item.

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor. He also reviews theater for WBUR. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.


  • BB, 2010-02-08 18:23:37

    Rightly or wrongly, if this judge comes down against Prop. 8, his ruling will be immediately illegitimate because he has both turned the trial into a Dr. Phil sideshow of "feeings" and "emotion" and because he’s a fruit. It’s almost a foregone conclusion the way he has allowed the trial to proceed that he was going to rule against Prop 8 from the beginning. His ruling declaring Prop 8 unconstitutional will not result in any closure on the matter, will be immediately appealed to the 9th Circuit and eventually SCOTUS. This has been a silly business from the start.

  • AM, 2010-02-09 15:59:28

    So what if he was straight? No one would be worried of an impartial decision then? The pro Prop. 8 people know they have a weak case which is based on bigoted,mean spirited and false information. They should get a life!

  • BB, 2010-02-10 09:02:43

    15:59. Grow up. The case is about the law, not about feelings. You don’t subject a law to constitutional review because it hurts somebody’s little feelings or because the people who wrote it weren’t nice people. That is how you govern Pee Wee’s Funhouse or Sesame Street, not a nation.

  • , 2010-02-12 09:30:03

    A ruling being "illegitimate" because the losers bitch and whine isn’t how the law works; and the PropH8 defenders had their own legal counsel, who might well have known to begin with. So NOM and their errand boys in the churches are going to vilify gays. What else is new? The plaintiffs made their objectives clear in their opening statement, and they pretty much followed it; it was the defendants who made half-baked attempts to appeal to emotions such as fear. People who refer to the plaintiffs’ case being "on the basis of emotion" are parotting what the defendants were saying even during the trial: it might help to actually look at the transcripts, opening statements and trial summaries. IMO, Walker’s being gay was an ’open secret’, most likely the attorneys on both sides already knew it. The legal profession is like a gossipy small town in many ways.

  • , 2010-02-12 09:33:26

    The "anonymous" post is mine; I since registered. Here’s the link for the opening statements and for the transcripts For subsequent days’ transcripts, just substitute the next number for the "1".

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