Federal Judges, Gay, Gay Marriage

The Prop 8 Judge May Be Gay: Does It Matter?

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We first heard about this months ago — back in September, from another speaker at the Lavender Law conference. We didn’t mention it at the time, though, since we’re not that comfortable outing people.
But now that the cat has been let out of the bag — or closet, as the case may be — by the mainstream media, let’s… go there. From the San Francisco Chronicle:

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.

Shocking? Not exactly. Judge Walker is a professionally successful white male, with great job security and a six-figure income, who’s in his sixties — and has never been married. A confirmed bachelor, if you will. Who lives in San Francisco. Umm, yeah.
(On the other hand, we hear His Honor’s favorite drink is a Maker’s Mark Manhattan — a fairly butch beverage, despite the maraschino cherry. We’ll stick with our cosmos, thank you very much.)
So this brings us to the question that Ashby Jones posed over at the WSJ Law Blog earlier today: If Judge Walker is gay, what should we make of that fact?


The Chronicle tried to get underneath his robe, to find out what Judge Walker bangs his gavel to. But His Honor did not cooperate:

Walker has declined to talk about anything involving the Prop. 8 case outside court, and he wouldn’t comment to us when we asked about his orientation and whether it was relevant to the lawsuit.
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.

Alanis Morissette concurs. And that sure sounds like an admission by Judge Walker that he’s a friend of Dorothy, doesn’t it? He’s not exactly denying it. When the Chronicle asked him if he had “any concerns about being characterized as gay,” the judge answered with “no comment.”
We reached out to law professor Arthur Leonard, an expert on the federal courts and LGBT rights, for some insight into the situation. Professor Leonard seemed to view Judge Walker’s potential proclivities as a non-issue.
“[E]verybody whose opinion was canvassed by the Chronicle agreed that Judge Walker’s sexual orientation was essentially irrelevant to his being the judge on this case,” said Professor Leonard. “He’s respected as a very professional, impartial judge.”
Very true. We’ve heard nothing about Judge Walker as a jurist that would call into question his impartiality in this case. We’ve also heard many positive comments about his intellect — note his probing, smart questions during the Prop 8 trial — and his work ethic. For example, Judge Walker often works on the weekends (unlike many other federal judges, who take advantage of life tenure to slack off a bit).
In other words, just because Judge Walker likes to s some dcolor> might be gay in no way precludes him from ruling impartially in a gay marriage case. In fact, wondering whether a gay judge might be biased in a gay marriage case is arguably reflective of bias.
“[T]here is a tendency to think that only members of minorities are ‘biased’ about cases involving their issues,” said Professor Leonard. “It’s the majority-centric way of seeing things, that assumes that straight white males are, of course, neutral, while everybody else has a point of view. But everybody has a point of view on most issues, and the job for the judge is to separate out his or her personal views from his or her professional role and to strive to take an ‘objective’ approach to deciding the legal issues in the case.”
An ATL commenter on Morning Docket, where we previously linked to the Chronicle article, made a similar point: “I would have just as much of an issue if a heterosexual judge were hearing the Proposition 8 trial… and that is to say, none at all.”
But there is certainly room for disagreement here. Some other possible perspectives:

  • Judge Walker, if he is in fact gay, will be predisposed to strike down Proposition 8’s ban on same-sex marriage. His ruling, tainted by bias, will be illegitimate.
  • Judge Walker, if he is in fact gay, will “overcompensate” for his sexual orientation and uphold Prop 8. (Note his prior work, back when he was in private practice at Pillsbury Madison & Sutro (now Pillsbury Winthrop), against the Gay Olympics.)
  • Even if his orientation won’t affect his ruling, it does create a perception issue. From an ATL commenter: “The judge is gay? That’s a lose-lose situation for the gay marriage people. If he rules it unconstitutional, opponents will say it’s a biased outcome. If he rules it constitutional, opponents will say ‘even a gay judge doesn’t think your position is valid.'”
  • Judge Walker’s orientation really doesn’t matter, since nobody thinks this case will be settled at the trial level anyway — it’s going up to the Ninth Circuit, and possibly up to the U.S. Supreme Court.

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(That last point may be something of an overstatement. Even if the case ends up being resolved by a higher court, it will be resolved based on a trial record that was crafted by Judge Walker.)
These are just a few possible positions to take on the issue. What do you think? Take our poll, and discuss in the comments.
P.S. As far as we know, Judge Deborah Batts (S.D.N.Y.) is the only openly gay federal judge. Feel free to let us know about other gay federal judges, closeted or not, by email (subject line: “Gay Judge”).
UPDATE: There could be a second openly gay judge on the bench in the near future. Senator Chuck Schumer (D-NY) has recommended that President Obama nominate Daniel Alter, an openly gay man, to the Southern District of New York.

Judge Being Gay a Nonissue During Prop. 8 Trial [San Francisco Chronicle]
Prop. 8 Judge is Reportedly Gay: What to Make of That? [WSJ Law Blog]

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