Over the weekend, the San Francisco Chronicle revived the story that the judge in the Perry v. Schwarzenegger Proposition 8 case, Judge Vaughn Walker, is probably gay. This has led to social conservative group the National Organization of Marriage, who are “traditional” marriage advocates, to point fingers and cry their usual line of “activist judges” and “gay agendas,” hiding behind this as the reason why their side might loose the first round of California’s historic marriage equality case.

Firstly, 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.

Thus far, Judge Walker refuses to comment either way. However, the Chronicle then highlights Walker’s past decisions that have gone against gay rights groups as evidence that his homosexuality does not guarantee same-sex marriage advocates an easy ride:

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.

And what say the Pro. Prop 8 team? Well, to their credit, they’re not commenting on whether they believe Walker’s sexuality has effected the case, with attorney Andy Pugno saying:

“We are not going to say anything about that.”

Until he does say something about it, albeit indirectly:

He was quick to assert, however, that Prop. 8 backers haven’t gotten a fair shake from Walker in court. He cited both the judge’s order for the campaign to turn over thousands of pages of internal memos to the other side and Walker’s decision to allow the trial to be broadcast…

Of course they’re not going to say anything explicitly about Judge Vaughn Walker’s sexuality. Part of the purpose of the Prop. 8 trial has been to prove that the motivation behind passing California’s gay marriage ban was anti-gay animus. If proponents did pursue the gay judge angle outright, they’d probably risk exposing the ugly side of their case. Besides, they don’t need to tackle it directly, it’s enough to dance around it with slights and suggestions.

Fortunately, where Andy Pugno seems capable of being subtle, those over at the National Organization of Marriage (NOM) have all the finesse of a brick. Here’s an excerpt from their press release concerning Judge Walker’s supposed “bias”:

We have no idea whether the report is true or not. But we do know one really big important fact about Judge Walker: He’s been an amazingly biased and one-sided force throughout this trial, far more akin to an activist than a neutral referee. That’s no secret at all.

Protect Marriage, the defendants in this case are effectively being held hostage by Judge Walker and cannot really comment.

Pugno and Protect Marriage declined to comment on Walker’s sexuality, they weren’t gagged or “held hostage” – it’s there in black and white in the Chronicle. Regardless, they continue:

But Judge Walker’s bias from the bench includes:

A series of rulings permitting deep and deeply irrelevant “fishing expeditions” into the private and personal motivations and secret campaign strategy of campaign proponents. It wasn’t six guys at Protect Marriage that passed Prop 8 it was 7 million Californians. But Judge Walker went so far as to order the Prop 8 campaign to disclose private internal communications about messages that were considered for public use but never actually used. He even ordered the campaign to turn over copies of all internal records and e-mail messages relating to campaign strategy.

Even though the Prop 8 supporters were forced to turn over private, internal documents and emails, Walker has refused to demand the same from opponents of the measure. In fact, Walker has refused to even rule on a motion to compel the discovery of this information, even though he has already closed testimony in the case. That alone is an unbelievable tilting of the playing field.

This, of course, conveniently ignores several “really big important fact[s]” including the glaringly obvious: Part of the task before Judge Walker is to discern whether the pro Prop. 8 team were motivated by anti-gay bias and used it to fuel their campaign. Therefore, their campaign documents are vital in examining whether they were, in fact, trading on anti-gay sentiment to get their ballot measure passed. What is so extraordinary about requesting those campaign documents, then?

NOM’s Brian Brown continues:

To show the lengths that Walker has gone to create a “record” favoring the plaintiffs, he even allowed one “expert” witness — a gay man from Colorado who has never lived in California and was never exposed to any Prop 8 campaign messages — to testify that his parents’ efforts to change his sexual orientation failed.

Again, this shows a distinct lack of knowledge concerning the trial. The plaintiff’s witness, Ryan Kendall – not entered as an “expert” witness at all – was introduced to demonstrate that sexuality was an immutable characteristic. It was never claimed that Proposition 8 had any direct effect on him, but rather his testimony was there to show that you couldn’t “cure” homosexuality as the defense had claimed.

Also, if we want to talk about the “lengths” that Judge Walker has gone to, how about the lengths he went to in order to accommodate the pro Prop. 8 side and their “expert” witnesses, such as David Blankenhorn who didn’t even meet the usual standard of expertise for an expert witness, and had never actually published any peer-reviewed material on the subject of same-sex marriage. Judge Walker allowed him to testify, saying that he would weigh Blankenhorn’s experience and expertise alongside his testimony during deliberation, but, as the folks over at LGBT POV.com comment in their excellent post on NOM’s press release, “Blankenhorn testified because of Walker,” another judge may not have been so lenient.

In fact, Judge Vaughn Walker, who was randomly selected for this case (again, something conveniently glossed over by NOM), has shown considerable leniency to the pro Prop. 8 team, which flies in the face of Brown’s assertion that Walker has “been an amazingly biased and one-sided force throughout this trial, far more akin to an activist than a neutral referee.”

Walker refused to allow NOM’s own “Gathering Storm” ad to be shown in the trial, siding with the pro Prop. 8 team that the ad wasn’t directly relevant to the case even though it contained similar anti-gay elements that were used in the Protect Marriage campaigns. Walker also gave the pro Prop. 8 team’s other expert witness, Kenneth Miller, a great deal of license when, under cross-examination, it became clear that Miller’s knowledge of anti-gay discrimination was not as extensive as the title of “expert witness” would have suggested.

It’s the inference that NOM are pushing in their press release that really demonstrates bias, though. Their own bias, that is. It’s the idea that a judge who is himself gay can not be trusted to carry out his job properly to weigh the case, not on his own personal feelings, but on the legality of the issue and the merits of the arguments put before him.

But, if a gay judge can’t rule fairly in the Prop. 8 trial, does that also mean that religious conservatives in the United States Supreme Court can not be trusted to rule fairly come their turn at this case? Or is it only bias if the judge’s opinion does not agree with your own?

Now NOM and other groups are saying that Judge Walker should rescue himself from the Proposition 8 trial so that his “bias” doesn’t effect the outcome, but isn’t it really true that they are making a fuss in the vain hope that, by playing the victim card, they can manage to rescue their own failed defense?

Related Reading:

• Theodore Olson’s Road to Same-Sex Marriage Advocacy
• Perry v. Schwarzenegger Complaint

Care2 Related Reading:

• Won’t Someone Think of the Children?
• The Proposition 8 Court Case: It’s About American Values
• The Proposition 8 Court Case: Opening Statements, Testimony and Reaction
• The Proposition 8 Court Case: What’s the Big Idea?
• Should the Prop. 8 Court Case Be Broadcast?