- The Washington Times - Tuesday, April 26, 2011

To hear them describe it, defenders of traditional marriage during last year’s trial on California’s Proposition 8 felt like the visiting team in a game with a hometown referee.

It was an open secret that District Court Chief Judge Vaughn Walker was gay, although he had never publicly acknowledged it. Under the circumstances, challenging his objectivity in a case on the constitutionality of “one man, one woman” marriage carried substantial risks, such as angering the judge or being accused of “outing” a public figure, without any promise of success.

The circumstances changed when Judge Walker, now retired, was quoted in an April 6 article by Reuters saying that he had been involved in a same-sex relationship for more than 10 years. Now traditional-marriage proponents are openly disputing the judge’s impartiality, culminating in Monday’s motion to throw out his decision overturning Proposition 8.

The situation has raised thorny issues over how much judges should be required to disclose about their personal lives - and whether a judge’s identity can be considered a conflict of interest. With a raft of lawsuits in support of same-sex marriage working their way through the legal system, it may be only a matter of time before the Walker scenario repeats itself in another courtroom.

The gay-rights community has dismissed the challenges as a last-ditch attempt to skirt the judge’s decision. Judge Walker ruled in August that Proposition 8 violated the California Constitution’s equal-protection clause, but the 9th U.S. Circuit Court of Appeals has placed a hold on the order until an appeal can be heard.

“They’re grasping at straws. It’s truly desperation at this point,” said Rick Jacobs, chairman of the Courage Campaign in Sacramento.

Gay-marriage supporters argue that such a challenge, if successful, would set a discriminatory precedent. Barring gay judges from ruling in same-sex marriage cases would be equivalent to preventing female judges from ruling in abortion cases or black judges from deciding civil rights cases.

What’s more, they said, heterosexual judges have perhaps as great a stake in the nation’s marriage laws as do their gay counterparts.

“I could argue that Judge Walker was the only judge sufficiently unbiased to take the case because he was the only judge who was unmarried in that district,” Mr. Jacobs said. “The Proposition 8 side argued that same-sex marriage would do irreparable harm to marriage. Therefore anyone who was married would be affected by this.”

Proponents of traditional marriage say their lawsuit is directed at Judge Walker alone and not gay judges in general. Because Judge Walker lives in California and has been involved in a long-term same-sex relationship, he had “an interest that could be substantially affected by the outcome of the proceeding,” according to the motion.

Under federal law, the motion argues, Judge Walker should have recused himself from the case or disclosed his relationship and allowed attorneys to decide whether to file for his recusal. Since he failed to do so, proponents say, the order striking down Proposition 8 should be vacated.

“We are not suggesting that a gay or lesbian judge could not sit on this case,” said Andrew Pugno, attorney for ProtectMarriage.com. “Rather, our motion is all about the fundamental principle that no judge is permitted to try a case in which he has an interest in the outcome.”

Mr. Jacobs countered that the judge didn’t need to strike down Proposition 8 in order to marry. He simply could have flown to Connecticut, for example, and married his partner under that state’s same-sex marriage law. Five states and the District of Columbia have legalized gay marriage.

Allowing attorneys to quiz the judge on whether he planned to marry would put the judiciary on a “slippery slope,” he said. “Now we’re asking judges to disclose what’s in their hearts,” said Mr. Jacobs. “It’s an absurd overreach.”

Proponents of Proposition 8 argued that Judge Walker had demonstrated his hostility to the initiative well before the ruling.

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