California Prop 8 judge Vaughn Walker: The appalling effort to disqualify him from judging the gay marriage case because…

The law, lawyers, and the court.
June 13 2011 5:33 PM

Too Gay To Judge?

The preposterous, appalling effort to disqualify Vaughn Walker from judging the California gay marriage case because he is gay.

Vaughn Walker. Click image to expand.
Judge Vaughn Walker

Today, a court in San Francisco heard arguments about one of the most contemptible legal claims advanced in decades: that Vaughn Walker, the federal judge who voted last spring to strike down California's ban on gay marriage, was too gay to decide the case fairly.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

The claim brought by ProtectMarriage, the group that sponsored the 2008 ballot initiative, tries to shimmy around a direct assertion that Walker's homosexuality should disqualify him from having judged the Prop 8 case. They don't say that Walker, who retired from the federal bench last February following his Prop 8 ruling, is biased in favor of gay marriage because he is gay. Instead ProtectMarriage argues—see   this April 25 motion to vacate Walker's ruling—that Walker, who has lived with his partner for 10 years, may have ruled for gay marriage so that he himself could get married and someday enjoy the benefits of marriage. The motion to vacate is thus rooted in their argument that "no judge is permitted to try cases where he has an interest in the outcome." And since "no one would suggest that Chief Judge Walker could issue an injunction directing a state official to issue a marriage license to him, yet on this record, it must be presumed that that is precisely what has occurred," his ruling, they insist, must be scuttled. 

The problem for the proponents of Prop 8 is that there is no evidence in their motion that Walker ever sought to marry his partner, despite the existence of a decadelong relationship. So they rely instead on the argument that he is gay, and that's enough.

Although rumors that Walker was gay   had been floated—and largely ignored—at the start of the Prop 8 hearing, Walker confirmed, following his retirement, that he was in a committed relationship with another man. He added at the time that he never considered that a reason to recuse himself from the case.

The hearing today took place in the courtroom of Chief Judge James Ware, who took over the Prop 8 case after Walker's retirement. Both were George H.W. Bush appointees. Ethics experts were quick and nearly unanimous in opining that this effort to overturn Walker's decision on the basis of his relationship is specious as well as desperate. No claim that a federal judge should have been barred from hearing a case because of race, gender, or religion has ever succeeded, a point made by California Attorney General Kamala Harris in her brief opposing the motion to vacate this ruling: "Just as every single one of the attempts to disqualify judges on the basis of their race, gender, or religious affiliation has been rejected by other courts, this Court should similarly reject Defendant-Intervenors' effort to disqualify Judge Walker based on his sexual orientation."

Still, just because a legal argument is degrading and futile doesn't mean nobody will make it. For as long as there have been bigots in America, litigants have tried to argue that women are too womanly to decide gender cases and that Jews are too Jewish to hear cases involving the first attacks on the World Trade Center. Like ProtectMarriage, these litigants also have tried to dress up their claims as something other than pure bigotry. They never prevail.

The federal recusal statutes provide that judges should be disqualified in cases in which they are actually biased, and also in cases in which their impartiality might reasonably be questioned. As Sherrilyn Ifill wrote in The Root, the effort to besmirch Judge Walker's integrity is eerily similar to earlier campaigns against black and female judges:

In the late 1970s and early 1980s—as a bumper crop of minority federal district judges appointed by President Jimmy Carter presided over employment-discrimination cases brought under Title VII of the Civil Rights Act of 1964—recusal motions were filed by defendants seeking to remove black judges from hearing these cases. Black judges pushed back firmly against attempts to question their impartiality and framed what has become the universally accepted understanding among the bench and bar: that judicial bias cannot be assumed based on the racial, gender or other status of the judge.

In one of the most pathetic such efforts, cited by Ifill, litigants in 1975, representing the law firm of Sullivan & Cromwell, attempted to bounce federal district judge Constance Baker Motley off a suit brought by female lawyers at the firm alleging gender discrimination. The firm argued that Motley would be biased as a woman, an African-American, and a former civil rights litigator. Motley's response is as true for Walker today as it was for herself in 1975: "If background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others, by virtue of the fact that all of them were attorneys, of a sex, often with distinguished law firm or public service backgrounds."

Federal District Judge Leon Higginbotham was faced at about the same time with a motion demanding that he too recuse himself from a case involving African-American plaintiffs claiming discrimination. He replied that "[white] litigants are going to have to accept the new day where the judiciary will not be entirely white and where some black judges will adjudicate cases involving race relations." Opponents of gay marriage will similarly have to accept the reality that gay judges are no more "biased" than heterosexual ones.

This is the same charge of inherent—even unconscious—bias based on status that was leveled against then-Judge Sonia Sotomayor at her Supreme Court confirmation hearings when her opponents alleged that unlike a white man, a Latina woman could never be impartial in a case involving allegations of race discrimination. The notion that only straight judges can be unbiased about gay marriage is as silly as the argument that only whites can be objective about race. It's also an argument that can be deployed as readily against Clarence Thomas and Janice Rogers Brown as against liberal jurists.

And what of the argument that Judge Walker stood to benefit personally from his own ruling in the Prop 8 case? Wouldn't—by this logic—a straight judge similarly stand to benefit from a ruling upholding Prop 8? Certainly under the plaintiffs' theory of the case (i.e., that every last heterosexual in America will be harmed by legalizing gay marriage) wouldn't a straight judge have been forced to recuse herself as well to avoid the possibility of personally benefitting from her ruling?

Presumably if Walker had wanted to marry his partner in California he could have done so during the period of time in which gay marriage was legal there. He didn't. And presumably, Walker could still marry his partner in another state that recognizes gay marriage. He hasn't. Given that he hasn't chosen to get married when and where he could, it hardly makes sense for ProtectMarriage to claim that his anti-Prop 8 ruling is the functional equivalent of "issuing an injunction directing a state official to issue a marriage license to him." Is merely imagining a potential conflict of interest sufficient to create one? Where, precisely, do imaginary claims about imaginary judicial life plans stop?

And what of the argument that Judge Walker had an obligation to disclose his relationship to the parties, thus allowing them to determine for themselves whether he was planning to marry his partner? Legal ethics experts seem to differ on this matter, but given that the defendant-intervenors claim about Walker's secret marriage plans is fictional, it's hard to understand how they would have proven it prior to trial any more effectively than they managed to prove it today.

Early word from the hearing today is that Judge Ware is having a hard time with the plaintiffs' assertion that Judge Walker planned to marry his partner because plaintiffs say so. Ware has said he will rule quickly—probably in a day or two—but it's difficult to imagine that he will be willing to entertain an argument about judicial bias, based not merely on a judge's status, but also on unfounded assertions about that judge's hidden marital aspirations. Nobody is suggesting that judges have no opinions or that life experience doesn't inform their ideas. But there is no evidence at all that Walker was unable to look past sexual preference to decide this case on its merits. And perhaps this is a good a time as any to recall that the proponents of Prop 8 failed so miserably at trial precisely because vague, unsubstantiated charges of conspiracy, secret agendas and inchoate social harms aren't really legal arguments in the first place.

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