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Judge Walker’s Sexuality Doesn’t Matter

2011 June 20

Last year Judge Vaughn Walker was the Chief Judge of the U.S. District Court for the Northern District of California.  It was this court, with Judge Walker presiding, that heard the suit brought by opponents of California’s Proposition 8, which made gay marriage illegal.  The case, Perry v. Schwarzenegger, challenged the constitutionality of the Proposition 8 ballot initiative, claiming the law was illegal on the grounds of violating homosexual citizens’ constitutional rights to Due Process and Equal Protection under the 5th and 14th Amendments.

Judge Walker ruled that Prop 8 did indeed violate homosexuals’ constitutional rights and could not be enforced.  In his beautiful and eloquent ruling, Judge Walker stated Propisition 8 was incompatible with the 14th Amendment because  there is no legitimate state interest in denying homosexuals the right to marry; that “by every available metric, opposite-sex couples are not better than their same-sex counterparts…as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.”

Judge Walker retired shortly after issuing his ruling in Perry v. Schwazenegger, and shortly after that, revealed that he himself is gay and has been in a relationship with another man for 10 years.  Judge Walker’s admission ignited a firestorm, and opponents of marriage equality lit up with glee at the possibility that they might have what could be construed as legitimate legal grounds to have Judge Walker’s ruling overturned.  The defendents in the Perry case argued that because Judge Walker is himself gay, his impartiality was so compromised in judging Perry v. Schwarzenegger that he should have recused himself.  The premise of this position is rather insulting, as this argument—were it valid—would prohibit Jewish judges from presiding over the trials of Neo-Nazis or other Jews, Black judges from presiding over KKK trials or trials of Black defendants, female judges from presiding over the trials of women, etc.  Just because the jurist happens to belong to a group or minority does not preclude him or her from acting impartially.  U.S. District Chief Judge James Ware made this point, stating:

The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification…it is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings.

Judge Ware ruled that Judge Walker’s homosexuality did not constitute a “non-pecuniary interest that could be substantially affected by the outcome of the case” and quashed the motion to vacate Judge Walker’s ruling.   Judge Ware also addressed the discrimination underlying the argument to vacate Judge Walker’s decision:

…the presumption that “all people in same-sex relationships think alike” is an unreasonable presumption, and one which has no place in legal reasoning.  The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief.  On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits. The Motion fails to cite any evidence that Judge Walker would be incapable of being impartial, but to presume that Judge Walker was incapable of being impartial, without concrete evidence to support that presumption, is inconsistent with what is required under a reasonableness standard.

We all should be very grateful that sanity and sound judgment prevailed, and that Judge Walker’s ruling was not overturned.  But this certainly is not the end of the battle for equality under the law for members of the LGBT community.  Perry v. Schwarzenegger will most certainly be appealed in Federal Court, and eventually will be reviewed by the Supreme Court, but that will very probably take years.  We can only hope that in the intervening years before this case is brought to the Supreme Court, more states and more courts will rule in favor of marriage equality, and we will come ever closer to ending the last legally permissible form of discrimination.

Jacqueline Moss holds a B.A. in American Studies from Bard College and is an avid reader of thick (and occasionally dull) history books and Supreme Court opinions. Jacqueline is currently applying for law school and spare time is spent looking for employment, knitting, cooking, and enjoying the scene in Portland Maine.

2 Responses leave one →
  1. June 20, 2011

    jackie, good article! i read it without knowing you wrote it or that it was even on thebusysignal until i got to your bio at the end!

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