Vaughn Walker

Second of two parts (Part One)

Former U.S. District Court Chief Judge Vaughn Walker recently told a small group of reporters that it would be a “very slippery slope” to say that a judge’s “sexuality” should prevent him or her from handling a case such as the trial against Proposition 8. Many legal activists—gay and straight—agree. In fact, the lead attorney for the Yes on 8 coalition that is defending California’s ban on same-sex couples marrying agrees.

“We are not suggesting that a gay or lesbian judge could not sit on this case,” said Charles Cooper states, in his motion to vacate Judge Walker’s ruling against Proposition 8. But in their April 25 motion seeking to vacate Walker’s ruling, Cooper and his team argue that, “Given that Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced), it is clear that his ‘impartiality might reasonably [have been] questioned’ from the outset.”

The U.S. Code governing “Judiciary and Judicial Procedure” does not stipulate that a judge should recuse himself because of any specific personal characteristic that he or she has. It draws a case-specific line: The Code states that a judge should recuse himself “in any proceeding in which his impartiality might reasonably be questioned” or in any case where the judge “knows that he … has a financial interest in the subject matter in controversy … or any other interest that could be substantially affected by the outcome of the proceeding….”

It is the latter directive Yes on 8 focuses on because, in an April 6 interview with reporters, Walker acknowledged having been in a relationship with a man for the past 10 years.

“[I]f at any time while this case was pending before him, Chief Judge Walker and his partner determined that they desired, or might desire, to marry,” wrote Cooper in his motion, “Chief Judge Walker plainly had an ‘interest that could be substantially affected by the outcome of the proceeding’.”

“Indeed, such a personal interest in his own marriage would place Chief Judge Walker in precisely the same shoes as the two couples who brought the case,” said Cooper. “Such a clear and direct stake in the outcome would create a nonwaivable conflict, and recusal would have been mandatory.”

Certainly, being able to marry provides couples benefits, including financial benefits. That has been a key argument from plaintiffs in this case and from legal groups fighting the federal Defense of Marriage Act (DOMA) in other federal cases.

But it is hard to imagine how Judge James Ware, whose job it will be to rule on the motion to vacate, can determine whether Walker and his partner “desired” or “might” have desired to marry during the course of the trial without asking Walker –either in court or through an affidavit. And that will lend extra drama to the June 13 hearing on the motion to vacate because Judge Ware has ordered Judge Walker to appear in court that day when Judge Ware hears arguments on a separate motion, concerning videotapes of the trial.

Cooper argues, in his motion, that Walker should have “at a minimum” provided “full disclosure on the record” about his relationship “so that the parties could consider and decide before the case proceeded further, whether to request his recusal.” (Apparently, Cooper and his team were either unaware of what the San Francisco Chronicle called an “open secret” concerning Walker’s being gay—or maybe they just didn’t put stock in rumors.)

But the Code also states that, “disqualification is not required if the [judge] divests himself or herself of the interest that provides the grounds for the disqualification.”

In other words, Walker could presumably divest himself of any potential gain from his ruling if he simply declared that he has never intended to marry his same-sex partner and that he never intends to do so.

Cooper appears to address this aspect of the Code when he notes that Walker “had a duty to disclose not only the facts concerning his relationship, but also his marriage intentions….”

“Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case,” wrote Cooper. “…  Because he did not do so when the case was assigned to him, and has not done so since, it must be presumed that he has an interest in marrying his partner and therefore was in fact the ‘judge in his own case’.”

But that’s Cooper’s presumption—that all people in long-term relationships want to get married. It is well known in the LGBT community that not all gay and lesbian couples want to get marriage. Census data shows the same to be true for many straight couples. Data released in 2008 showed the number of unmarried heterosexual couples living together numbered about six million—up from less than one million in 1977. And, in a twist of irony, it was a 2006 study by a group that opposes same-sex marriage (the Institute for Marriage and Public Policy) that claimed only about 15 percent of same-sex couples who live in places where they can obtain a marriage license choose to do so.

And then there’s the reality that, if Walker and his partner had wanted to get married, they had a six-month window of opportunity to do so in California—between May and November 2008, before voters passed Proposition 8.

Not surprisingly, then, Cooper attempts to persuade Judge Ware of Judge Walker’s impartiality by characterizing certain of his acts during the trial as having been “marked by a number of irregular and unprecedented rulings, both procedural and substantive, that give gravely disquieting force to the ‘appearance of partiality’ created by the belated disclosure of Chief Judge Walker’s long-term, committed relationship.” Among those rulings, said Cooper, was Walker’s request that Yes on 8 disclose confidential, internal communications of the pro-Proposition 8 groups; and his ruling that the trial proceedings be broadcast and web streamed. But neither of those rulings could have a demonstrated impact on the case because both of those rulings were overturned by higher courts.

One thing that seems painfully clear from this latest round of side issues to the Proposition 8 case is that, whatever Judge Ware decides concerning the motion to vacate, that ruling, too, will almost certainly be decided by a higher court.