Judge Walker’s Same-Sex Relationship Should Invalidate Prop 8 Ruling Say Foes

Judge Vaughn Walker who ruled to overturn California’s gay marriage ban in August, 2010, recently opened up about his private life and confirmed what has been an open secret for years: that he is in fact gay and in a relationship. In a court filing this week, Prop. 8 backers ProtectMarriage argue that this decade-long same-sex relationship should invalidate Vaughn Walker’s ruling because, they claim, he must be biased.

From the LA Times:

In a court filing, the sponsors of the ban on gay marriage, ProtectMarriage, asked the chief judge of the federal court in San Francisco to nullify last August’s ruling by former U.S. District Chief Judge Vaughn R. Walker, who retired earlier this year.

ProtectMarriage said Walker should have disclosed his involvement with his male partner before presiding over the marriage trial because it constituted a conflict of interest.


“Judge Walker’s 10-year-long same-sex relationship creates the unavoidable impression that he was not the impartial judge the law requires,” ProtectMarriage argued in the legal filing.

Andy Pugno, a lawyer for ProtectMarriage, said the group was not suggesting that it would be inappropriate for any gay or lesbian judge to sit on the case. “Rather, our motion is all about the fundamental principle that no judge is permitted to try a case where he has an interest in the outcome,” Pugno said.

Erwin Chemerinsky, dean of law at UC Irvine and an expert in the federal constitution, said “there is no chance whatsover” that Walker’s ruling would be voided because the judge failed to tell the backers of Proposition 8 that he was gay.

“No judge is going to say that another judge has a duty to declare his or her sexual orientation,” the law professor said.

He said that would be akin to asking black judges to recuse themselves from race discrimination cases or female judges to remove themselves from litigation involving sex bias.

Critics point out that ProtectMarriage was fully aware of Walker’s sexual orientation before the trial but the group never asked the judge to recuse himself, preferring to wait until after the trial to grumble that they never got a fair hearing (although the defense was widely criticized as being lackluster).

The 9th Circuit Court of Appeals is currently waiting on the California Supreme Court deciding whether ProtectMarriage as defendant-intervenors have standing enough to even be appealing the case before the 9th Circuit. If it is determined they lack standing, it is likely the 9th Circuit will dismiss the case and Judge Vaughn Walker’s ruling will go into effect.

The state’s administration would usually defend the law in such cases, but the anti-gay marriage group ProtectMarriage intervened when both the then governor Arnold Schwarzenegger and the then attorney general Jerry Brown declined to do so because they believed the 2008 ballot measure was unconstitutional.

Although ProtectMarriage was allowed to intervene in the case, as defendant-intervenors the right to defend the law at appeal was not automatically granted, as Walker noted in his original ruling.

In accepting the case, the 9th Circuit Court of Appeals stated that the defendant-intervenors would have to prove their standing in order for the appeal to go ahead. The 9th Circuit called on the California Supreme Court to advise whether any state law would give the intervenors standing, perhaps indicating that the federal court was doubtful that, without such a law, the appeal could continue.

With this decision factored in, it is estimated that the 9th Circuit will rule sometime in early 2012.

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Photo used under the Creative Commons Attribution License, with thanks to angela n.


Annmari Lundin
Annmari L6 years ago

Get a life, you "family rescuers", whatever names you're using! Put your effort and endless money into something better than to justifying disrcimination. Use your endless sources to help children get an education, poor people get affordable healthcare and unemployed a job with a paycheck to support themselves and their families, whatever form they take. You hear me: G-E-T -A- L-I-F-E!
The rest of the civilized world are laughing at you for putting so much effort into being homophobes when even catholic countries like Spain, Portugal, Mexico, Brazil, etc have already passed you by.

Lulu L.
Lulu L6 years ago

Replace the judge

Danny W.
Danny Wilson6 years ago


Hope S.
Hope S6 years ago

Jennifer hit the nail onthe head. If he was biased for, heterosexuals would be biased against.
With the divorce rate what it is, it would seem that the defense of marriage act is rediculous.

Jennifer T.
Jennifer T6 years ago

Using this ill "logic" - a heterosexual judge would have a bias in this case as well. So the accusations against Judge Walker just don't pass the smell test. Really - its distressing to find biggotry so alive and well at this late date!

Maybe we should be more concerned with defending the 'separation of church and state' that many of us were under the mistaken idea we had in this country. After the California election it was revealed the Mormon church provided much of the financial backing for misleading ads about Prop 8. How can a "church" financially participate in politics without losing its tax-exempt status?

Linda T.
Linda T6 years ago

If we use their logic than a married judge could never hear a divorce case. What morans.

Reade H.
Reade H6 years ago

Isn't the judge supposed to base his judgments on the merits of the case? If he didn't, then there is cause for an appeal. Everyone has biases (even judges) but if a judge makes a judgment based on the bias rather than the case then that judgment won't stand. I would be surprised if the judge didn't have an opinion (maybe even a desire that the law be struck down) but that doesn't make his judgment bad. If he erred in law then it should be easy to get his ruling struck down. It's not like there aren't plenty who would like to overturn his ruling but apparently they don't have a case or it would be done.

Sue Griffiths
SUE Griffiths6 years ago

I despair that this is even an issue in 2011. What is the matter with people who are homophobic? So what if he's gay? That doesn't make him any less of a human being. Why would it make him biased? If a female judge has been raped, should she have to declare it when hearing rape cases? If a judge has been sexually abused in his/her past, should he/she have to declare it when hearing a case on sexual abuse? If a judge has been physically abused should he/she have to declare it if he/she is hearing a case on GBH? If a judge has lost a family member through drink driving, should he/she have to declare it when hearing a drink driving case? If a judge has lost a friend or family member who has been shot, should he/she have to declare it when hearing a case on gun crime? I could go on for ever with such examples. The bottom line is these people don't like homosexuals. Gay and bi people are born that way. Just as we have brown or blue eyes, black or white skin. Sexual orientation is biological in nature and therefore is not a choice. It's as natural to them as being straight is to heterosexual people. So just deal with it. As long as a person is a good citizen, that's all that matters. If a child is born for example without arms or legs, it is not usually demonised, that's just the way they were born. So when someone is born with a part of their X chromosome missing (to simplify it), and they grow up to be gay, then likewise they should not be demonised.

David N.
David N6 years ago

@ James

UMMM Judges don't force any law on us since they don't make the law. All this judge did was take an unconstitutional law and invalidate it as he should have

Norma V.
Norma Villarreal6 years ago

Humans are humans...I dare you to find one who is absolutely without bias and prejudice! Get over it....