On Monday a Federal judge heard arguments about why Judge Vaughn Walker, the retired chief justice of the Federal District Court should have his ruling last year striking down California’s ban on same-sex marriage set aside. Walker, in case you’ve been ignoring this part of the drama, is gay (gasp, choke, wheeze, flutter, faint).
This is, of course, not much different than demanding that an African American judge be disqualified from ruling on a civil rights case that might, in the broadest sense, benefit his or her grandchildren, excluding a woman justice from a gender bias case, or calling foul because a Christian jurist rules on a case about about public prayer.
Most every major California news outlet covered this story but the most bracing, as is often the case, was the smart and outrage-laced report by Slate’s Dahlia Lithwick.
Here’s how it opens:
Today, a court in San Francisco heard arguments about one of the most contemptible legal claims advanced in decades: that Vaughn Walker, the federal judge who voted last spring to strike down California’s ban on gay marriage, was too gay to decide the case fairly.
The claim brought by ProtectMarriage, the group that sponsored the 2008 ballot initiative, tries to shimmy around a direct assertion that Walker’s homosexuality should disqualify him from having judged the Prop 8 case. They don’t say that Walker, who retired from the federal bench last February following his Prop 8 ruling, is biased in favor of gay marriage because he is gay. Instead ProtectMarriage argues—see this April 25 motion to vacate Walker’s ruling—that Walker, who has lived with his partner for 10 years, may have ruled for gay marriage so that he himself could get married and someday enjoy the benefits of marriage. The motion to vacate is thus rooted in their argument that “no judge is permitted to try cases where he has an interest in the outcome.” And since “no one would suggest that Chief Judge Walker could issue an injunction directing a state official to issue a marriage license to him, yet on this record, it must be presumed that that is precisely what has occurred,” his ruling, they insist, must be scuttled.
The problem for the proponents of Prop 8 is that there is no evidence in their motion that Walker ever sought to marry his partner, despite the existence of a decadelong relationship. So they rely instead on the argument that he is gay, and that’s enough.
[BIG SNIP]
No claim that a federal judge should have been barred from hearing a case because of race, gender, or religion has ever succeeded, a point made by California Attorney General Kamala Harris in her brief opposing the motion to vacate this ruling: “Just as every single one of the attempts to disqualify judges on the basis of their race, gender, or religious affiliation has been rejected by other courts, this Court should similarly reject Defendant-Intervenors’ effort to disqualify Judge Walker based on his sexual orientation.”
Heck, it all makes for an intriguing read, so check it out here.
AND THEN IF YOU WANT THE WHAT WHERE WHO WHEN HOW WHY’S OF THE ISSUE, THEN THE SF CHRON HAS A WELL-WRITTEN AND THOROUGH REPORT
You can find it here.