The Forum Fix

The Prop. 8 is starting to wind down. The Plaintiffs have put on their case-in-chief. The Defendants are almost done with their case. It's the perfect time for someone to report on the "open secret" of the trial: the judge hearing the case is gay...not that there's anything wrong with that: Judge Being Gay Is A Non-Issue at Prop. 8 Trial

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.

They also don't believe it will influence how he rules on the case he's now hearing - whether Proposition 8, the 2008 ballot measure approved by state voters to ban same-sex marriage, unconstitutionally discriminates against gays and lesbians.

"There is nothing about Walker as a judge to indicate that his sexual orientation, other than being an interesting factor, will in any way bias his view," said Kate Kendell, head of the National Center for Lesbian Rights, which is supporting the lawsuit to overturn Prop. 8.

As evidence, she cites the judge's conservative - albeit libertarian - reputation, and says, "There wasn't anyone who thought (overturning Prop. 8) was a cakewalk given his sexual orientation."

Now, if you read the linked article, you will see a lot of testimonials from local pols, gay rights activists, and attorneys who say that Judge Walker's orientation will have no effect on his ruling, that he's tough yet fair, and by the way, did you know he was appointed to the bench by Bush 41? Also, he has the reputation of being a "maverick."

Now, far be it from me to suggest that the judge may have a hard time maintaining judicial neutrality in this matter. Judges put aside their politics and values all the time so that their decisions follow the law, rather than their feelings. But, Judge Walker has already made a couple of high profile rulings in this case that were (1) unusual and (2) heavily weighted in favor of the Plaintiffs.

First, he ordered the Defendants to turn over thousands of pages of internal communications for the Yes on 8 campaign, so that the Plaintiffs could search for evidence the ever-elusive "hate" that supposedly drove the Prop. 8 campaign. This was little more than a fishing expedition, and an over-broad and burdensome one at that, not to mention an invasion of privacy. This decision was promptly overturned on appeal.

Next, Walker embarked on a quioxtic attempt to televise the trial, despite rules against televising proceedings in federal court. To get around this, he issued an order allowing the trial to be videotaped and then uploaded to Youtube. Maverick! This one went all the way to the US Supreme Court, which also promptly shot this idea down.

I have no idea what Judge Walker is going to decide in this case. He was assigned the case at random, so it's not like the Plaintiffs literally chose him. However, they did choose a forum where they were most likely to receive a fair hearing, and they have certainly gotten that. Being gay doesn't mean someone is automatically in favor of gay marriage, any more than being black leads someone to automatically favor affirmative action. Still, this is a case where the appearance of bias is more than academic.

UPDATE: the more I think about this, the more I think that the Defendants got sand-bagged by the judge and by the Plaintiffs. If I had to guess, I would say that the Plaintiffs were aware of the judge's "open secret," but that the out-of-town defense attorneys were not. The case is being heard as a bench trial, no doubt because the Defendants feared that an SF jury would not look kindly on them. Now, however, they are stuck with a bench trial where the judge would seem to have a potential bias that could have changed the Defendants' legal strategy.