Judge Vaughn Walker

With no named sources and a “no comment” from the judge, the San Francisco Chronicle this week reported that it is an “open secret” in San Francisco that the federal judge presiding over the Proposition 8 trial “is himself gay.”

The report came in the form of a February 7 column by the regular columnist duo of Andrew Ross and Phillip Matier, stating, “Many gay politicians in San Francisco and lawyers who have had dealings with Walker say the 65-year-old jurist…has never taken pains to disguise—or advertise—his orientation.”

Matier and Ross wrote that Walker “wouldn’t comment to us when we asked about his orientation and whether it was relevant to the lawsuit.” When they asked the judge whether he had any concerns about being characterized as gay, the judge, they wrote, said “no comment.”

Walker last month presided over three weeks of testimony presented in Perry v. Schwarzenegger, a case challenging the constitutionality of California’s ban on same-sex marriage. The ban was established after voters approved Proposition 8 in November 2008.

Matier and Ross noted that, “shortly” after speaking with Walker, they heard from “a federal judge who counts himself as a friend and confidant of Walker’s.” This judge, who they said “asked not to be identified,” told them that Walker was concerned “people will come to the conclusion that (Walker) wants to conceal his sexuality.”

The article does not claim that the anonymous friend identified Walker as gay.

“He has a private life and he doesn’t conceal it,” the friend is quoted as saying, “but doesn’t think it is relevant to his decisions in any case, and he doesn’t bring it to bear in any decisions.”

Walker, the chief of district court judges in the Northern California federal district, was appointed to the bench by President George H.W. Bush. As Matier and Ross also point out, Walker was one of the attorneys representing the U.S. Olympics Committee in 1985 when it prohibited the San Francisco Arts & Athletics Association from calling its event the Gay Olympics. Walker and his colleagues at Pillsbury, Madison & Sutro won the USOC’s case in 1986 before the U.S. Supreme Court.

The column in the Chronicle triggered relatively few reports in other news venues—only 60 nationwide by Tuesday, following the Chronicle’s original posting on Sunday. The New Yorker magazine’s law columnist Margaret Talbot says the Chronicle column “comes right out and says what has been relegated to the rumor-mill. Longtime gay legal activist Nan Hunter, at hunterforjustice.com, said she had heard “rumors,” too, but that they were “so discreet that there was no substantiation of it.”

Some media organizations, like San Francisco’s gay newspaper Bay Area Reporter, say the Chronicle’s column constitutes an outing—or involuntary revelation of a person’s sexual orientation. Others, like San Francisco Weekly, say it doesn’t.

“Can you ‘out’ someone who isn’t in the closet?” asked the Weekly’s legal columnist Lauren Smiley. “As the Chron story itself noted, Walker never took pains to conceal his sexuality. And any derision tossed the paper’s way has to come with the caveat that the Chron is only factually confirming what others had publicly speculated about.”

Smiley notes that an openly gay blogger and longtime gay/AIDS activist, Michael Petrelis, had written in his blog last July saying his “gaydar” identified Walker as gay during a preliminary hearing that Petrelis attended. Smiley did not mention that Petrelis’ blog also clearly stated, “I lack solid proof Walker is indeed gay.” Instead, she uses her column about the Chronicle column to relay such colorful Petrelis speculations as Walker “would make an excellent entertainer at a gay piano bar for refined mature gentlemen.”

The Chronicle contends its report did not constitute an “outing” of the judge, saying the judge was already out. Another columnist at the paper wrote a column saying the Matier and Ross column was a public service, addressing the public’s “right to know.”

“Until Sunday, it seemed inevitable that, however Walker ruled [in Perry v. Schwarzenegger], the losing side would bring up his sexual orientation,” wrote columnist Debra J. Saunders. “If he overturned the measure, losers would hit the conservative media to argue that, with a gay judge presiding, the fix was in from the start. If Walker upheld the measure, angry gay activists would denounce him as a self-loathing turncoat.

“Now,” said Saunders, “whatever Walker decides, the public can’t complain that he had a sub rosa agenda.”

Ross, asked what evidence he and co-author Matier used to confirm their report that Walker is gay, did not provide any details. But, said Ross in an email, “we would not have written our column without getting confirmation.”

Ross, who shared that he is straight, married, and has two children, said he has close relatives who are gay and in “loving relationships.”

Matier did not respond to a reporter’s request for comment.

Matier and Ross do not frequently tackle gay-related topics. But just last month, they reported that a Mormon on the board of an historic landmark in Oakland “appears” to have lost his seat because he made a $26,000 contribution to the Yes on 8 campaign. No one quoted in the story—not even the Mormon board member—was quoted as making the claim that the Mormon had not received reappointment to the seat because of the contribution.

And last October, they reported that Governor Arnold Schwarzenegger sent openly gay Assemblymember Tom Ammiano a hidden “F— You” message in a letter explaining his veto of legislation Ammiano had sponsored. Their evidence: The first letter of the second and third paragraphs started with the letters “F” and “Y.”

Is it an “open secret” in San Francisco that Judge Walker is gay? During this reporter’s stay in the city to cover the trial, various other reporters and gay people interested in the trial did openly discuss their belief that Walker is gay. The only evidence anyone offered, beyond the realm of ordinary rumor, was the claim that a third party had told them that they had seen Walker at a gathering of a local gay legal group.

Some people also speculated that Walker, who is chief judge of the U.S. District Court for the Northern District of California, may have had a hand in designating himself as the judge in the Proposition 8 case. There are 28 judges in that district, and judges are assigned cases randomly by a computer at the moment a complaint is filed. According to the January issue of California Lawyer magazine, the computer assigned Walker’s name to Perry v. Schwarzenegger at the moment an attorney on the legal team challenging Proposition 8 filed the complaint. Prior to and even after that moment, the legal team had taken great pains to keep their lawsuit a secret until they could hold a press conference announcing it.