Debate over judge’s sexual orientation not likely to affect Prop. 8 case


Gay and lesbian judges may preside over gay-rights cases and rule on same-sex marriage disputes as long as the jurists are not attempting to marry their partners, according to the nation’s top experts in legal ethics.

But ethicists disagree on whether retired federal judge Vaughn R. Walker, 67, should have disclosed his 10-year relationship with his partner before presiding over the challenge to Proposition 8, the 2008 California ballot measure that reinstated a ban on same-sex marriage. Walker ruled in August that the ban was unconstitutional, and his decision is now before an appeals court.

A conservative Christian group has asked a federal judge to void Walker’s ruling against Proposition 8 on the grounds that he might benefit from it if he wishes to marry his partner. Although Walker is openly gay and his sexual orientation was known to lawyers in the Proposition 8 case, Walker did not publicly confirm it or disclose his long-term relationship until after he retired from the bench in February.


A federal district judge in San Francisco has scheduled a June 13 hearing to decide whether Walker’s ruling should be wiped from the legal record as a result of his personal situation. Legal scholars, even those who disagree with Walker’s ruling, predict that the effort by Proposition 8 sponsor ProtectMarriage will fail.

New York University Law School Professor Stephen Gillers said that as long as Walker did not wish to marry his partner in California, there was no reason to disqualify him from the case. But Gillers said Walker should have disclosed his situation prior to trial.

“A judge should always disclose facts that are not publicly available, as in public financial disclosure filings, to give the parties a chance to seek recusal,” Gillers said.

He cited an American Bar Assn. model of conduct that says a judge should disclose information that the litigants or their lawyers “might consider relevant to a possible motion of disqualification, even if the judge believes there is no basis for disqualification.”

Other experts said federal law required no such disclosure.

“I don’t think he needed to disclose that any more than a non-gay judge would,” said Northwestern University Law Professor Steven Lubet, who wrote a book on judicial conduct and ethics.

Hofstra Law School Professor Monroe Freedman pointed to failed attempts to prevent a female African American judge from presiding over a sex discrimination case, a Jewish judge from a case involving an anti-Semitic pogrom and a Catholic judge from an abortion dispute.


The U.S. Supreme Court once nullified a judicial ruling that had been in place for 10 months after determining that the judge had an undisclosed conflict, but Freedman said such actions are “very unusual.”

Federal law says jurists can be disqualified from hearing cases because of financial interests, however slight, strong personal friendships with litigants, or a personal bias or prejudice, among other factors.

The issue of whether Walker had a conflict of interest has sparked a flood of written arguments, with most parties contending that Walker had no duty to disclose those personal facts. California Atty. Gen. Kamala Harris, who, like her predecessor, has refused to defend Proposition 8, argued that courts have rejected “every single one of the attempts to disqualify judges on the basis of their race, gender or religious affiliation.”

“The fact that Judge Walker is, like many individuals, in a long-term relationship that might or might not result in marriage is insufficient to show either that he has a disqualifying interest in the outcome of this litigation or that his impartiality may be questioned,” Harris argued.

Motions to disqualify a judge are becoming increasingly common, lawyers say. They can serve to put a jurist on notice that his or her actions will be scrutinized closely as well as to remove a jurist known for a tendency to rule in a certain direction.

One of the most publicized recusal cases involved U.S. Supreme Court Justice Antonin Scalia, who was asked to remove himself in 2004 from a legal dispute between environmentalists and then-Vice President Dick Cheney.


Cheney and Scalia were friends and went duck hunting together while the case was being considered. But Scalia refused to step down, saying Cheney was being sued as a government official.

U.S. 9th Circuit Judge John T. Noonan Jr. refused to remove himself from an abortion case even though he is a devout Roman Catholic. Freedman, one of the nation’s leading experts on legal ethics, defended Noonan’s refusal in a book.

But Freedman said he amended the chapter in later editions after learning that Noonan had disparaged abortion doctors in a published article.

“The U.S. Supreme Court has held unanimously that if a judge manifests a bias against an entire category of litigants, that disqualifies him,” Freedman said.

Charles J. Cooper, representing ProtectMarriage, contended in last month’s motion to nullify Walker’s ruling that sexual orientation alone would not have disqualified a judge from deciding Proposition 8.

For example, Walker would have had no conflict deciding the constitutionality of a federal law that prohibited openly gay men and women in the military because the outcome would not have affected him, Cooper said.


But Walker’s relationship and determination that marriage offers benefits for those in “committed, long-term, same-sex relationships” mean that Walker had a personal interest in the outcome, Cooper said.

ProtectMarriage said it did not attempt to disqualify Walker earlier because the group did not know Walker was involved in a long-term relationship until he said so in April during a meeting with reporters based in the San Francisco federal district court.

During that meeting, Walker said that he never considered removing himself from the Proposition 8 case because he was gay and assumed that his sexual orientation was not considered newsworthy because reporters rarely mentioned it, according to published reports.

The San Francisco Chronicle noted that Walker was gay in a column during the trial, and The Times reported it in a profile of the judge after closing arguments in the Proposition 8 trial. During interviews before and during the trial, The Times asked lawyers for ProtectMarriage to comment on the fact that Walker was gay. They declined.

Walker, a Republican appointee whose nomination was opposed by gay-rights activists, turned down requests for interviews. A spokeswoman said the retired judge believed it was inappropriate to do interviews at a time when he was being made the focus of the case.

Chapman University Law Professor Ronald Rotunda said it was significant that Walker’s ruling noted that marriage has financial benefits and that Walker applied the ruling to all Californians rather than just the two same-sex couples who challenged Proposition 8.


He said Walker could have avoided any possible conflict by limiting the ruling to the couples or by disclosing early on that he was in a committed relationship.

“It certainly would have avoided a lot of questions at the end,” said Rotunda, who teaches constitutional law and legal ethics.

But University of Minnesota Law Professor Richard W. Painter, who served as the chief White House ethics lawyer under President George W. Bush, said Walker had no duty to disclose his relationship because it clearly was not grounds for disqualification.

Painter said he disagreed with Walker’s ruling — “his view of the Constitution is a stretch” — and was disappointed that opponents of same-sex marriage decided to make an issue of the judge’s personal life.

“I personally think this borders on frivolous,” Painter said. “I think they are going to look very bad, and it is really unfortunate.”