Just when it looked like we were hitting a lull for a few weeks in the coverage of Perry v. Schwarzenegger, a new story hits the presses. In their Sunday column in the San Francisco Chronicle, Philip Matier and Andrew Ross discussed the impact that Judge Walker's sexual orientation could have on the trial that could overturn the gay marriage ban in California imposed by Proposition 8:
The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay.
Many gay politicians in San Francisco and lawyers who have had dealings with Walker say the 65-year-old jurist, appointed to the bench by President George H.W. Bush in 1989, has never taken pains to disguise - or advertise - his orientation.
They also don't believe it will influence how he rules on the case he's now hearing - whether Proposition 8, the 2008 ballot measure approved by state voters to ban same-sex marriage, unconstitutionally discriminates against gays and lesbians.
This doesn't seem to count as an unethical "outing" because Judge Walker was not taking pains to hide his orientation. Nevertheless, the wider dissemination of this piece of news could add to the narrative promoted by the defendants that they have been unable to get fair treatment from the Judge during this trial. The facts, however, tell a different story. Not only was Judge Walker nominated by a Republican president, he even had a reputation for being an anti-gay judge:
Many San Francisco gays still hold Walker in contempt for a case he took when he was a private attorney, when he represented the U.S. Olympic Committee in a successful bid to keep San Francisco's Gay Olympics from infringing on its name.
"Life is full of irony," the judge replied when we reminded him about that episode.
And did he have any concerns about being characterized as gay?
"No comment."
Furthermore, Judge Walker did not seek the case out; rather, it was assigned to him at random. Over at the Prop 8 Trial Tracker, Brian Leubitz raises an issue that explains just how absurd it would be to accuse Judge Walker of being biased on account of who he is:
So, did anybody comment about Justice Alito’s gender when he wrote the outrageous opinion in Ledbetter v Goodyear Tire that said that under the Civil Rights Act women could not sue after 180 days from the discriminatory decision, even if they didn’t know about the decision for years? The decision that ultimately spurred the passage of the Lilly Ledbetter Act because it was so egregious.
The fact is that we can never separate ourselves from our identities. Judge Walker was randomly assigned this case, and has been reasonable throughout.
In the column, Prop 8's Andy Pugno is quoted as saying that their side won't make this an issue. That is commendable if true, but we shouldn't hold our collective breath. It's hard to see why this issue would be untouchable for an organization that likes to link homosexuality with child molestation.
While this development adds a minor wrinkle to the ongoing narrative of the trial, it won't change the fact that no matter what happens in this trial, the case will end up before the 9th Circuit Court and likely the Supreme Court after that--so there's plenty of time and opportunity for straight judges to make their voices heard.