Speculation about judge’s sexual orientation increases in wake of gay marriage ban decision

By Lisa Leff, AP
Friday, August 6, 2010

Judge in gay marriage case subject to speculation

SAN FRANCISCO — The federal judge who overturned California’s same-sex marriage ban this week has been many things in his long career, including a lawyer who took the flame out of the Gay Olympics and a member of the powerful all-male Bohemian Club.

But after Chief U.S. Judge Vaughn Walker struck down the voter-approved ban known as Proposition 8, he became something else in the minds of some: a gay activist.

Rumors have circulated for months that Walker is gay, fueled by the blogosphere and a San Francisco Chronicle column that stated his sexual orientation was an “open secret” in legal and gay activism circles.

Walker himself hasn’t addressed the speculation, and he did not respond to a request for comment by The Associated Press on Thursday. Lawyers in the case, including those defending the ban, say the judge’s sexuality — gay, straight or in-between — was not an issue at trial and will not be a factor on appeal.

But that hasn’t stopped opponents of same-sex marriage from including it in their criticism of the 66-year-old Republican jurist’s ruling or the conjecture from taking on a life of its own.

The National Organization for Marriage, a group that helped fund Proposition 8, said it would use the California decision to revive the campaign to get Congress to pass a Constitutional amendment to outlaw same-sex marriage.

“Here we have an openly gay federal judge, according to the San Francisco Chronicle, substituting his views for those of the American people and of our Founding Fathers who I promise you would be shocked by courts that imagine they have the right to put gay marriage in our Constitution,” Maggie Gallagher, the organization’s chairwoman, wrote supporters.

The Gay and Lesbian Victory Fund, a political action committee for gay candidates, responded by alleging Gallagher “went after” Walker’s sexual orientation “to belittle and dehumanize” gay Americans. The fund launched an online petition accusing her group of “gay-baiting.”

But the debate raises the question: Why is sexuality different from other personal characteristics judges possess? Can a female judge rule on abortion issues? A black judge on civil rights? If you are a public figure, how open or circumspect do you have to be before others can peg you as “openly” straight or “openly” gay?

“The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal,” Walker wrote in his exacting, 136-page opinion.

Gerard Bradley, a law professor at the University of Notre Dame, published a Fox News column in the hours before Walker filed his opinion faulting the media for not forcing Walker to address if he had a personal interest in the outcome of the case.

“I am not saying that Judge Walker should have recused himself in Perry v. Schwarzenegger,” Bradley said. “I am not saying so because nowhere (as far as I know) has Judge Walker volunteered or been made to answer questions about how the outcome of that case would affect his interest (whatever it is) in marrying.”

Byran Fischer, issues director for the American Family Association, urged the groups members to contact their congressional representatives about launching impeachment proceedings because Walker had not recused himself from a case in which “his own personal sexual proclivities utterly compromised his ability to make an impartial ruling.” Fischer lamented that “almost no other organizations other than the American Family Association are making an issue of this”

William G. Ross, an expert on judicial ethics and law professor at Samford University in Alabama, said that a judge’s sexual orientation has no more relevance to his or her ability to rule fairly on a case involving gay marriage than it would for a deeply religious judge or a judge who had been divorced multiple times.

“Under the logic of the people challenging the judge’s fitness to rule on a case involving gay rights because he or she was gay, one would have to find a eunuch to serve on the case, because one could just as easily argue that a heterosexual judge couldn’t rule on it either,” Ross said.

The Walker rumors got started last summer after Michael Petrelis, a San Francisco blogger and AIDS activist, wrote a post saying the judge’s demeanor had triggered his “gaydar.” In May, Petrelis snapped a picture of Walker having dinner with the head of a local AIDS organization at a restaurant in the city’s predominantly gay Castro District.

Like many others, Petrelis interprets Walker’s silence on the subject after the Chronicle’s February column appeared to mean that the “open secret” is no longer a secret.

“I wouldn’t say he is openly gay, but no denial, no statement no nothing after that appeared I think said to a lot of us, ‘Yeah, he is gay and doesn’t mind being called gay by the leading newspaper in town,’” Petrelis said.

Months before Walker struck down Proposition 8 as an unconstitutional violation of gay Americans’ civil rights, members of the team defending the ban in court had complained about what they perceived as judicial bias.

Over their vigorous objections, Walker pushed to have the proceedings televised live, a plan the U.S. Supreme Court quashed at the last minute. Then, he refused to excuse as a witness a Proposition 8 supporter who had compared gays to child molesters during the 2008 campaign. Lawyers for the two same-sex couples who sued to invalidate the ban had called him to testify to try to prove the measure was fueled by anti-gay prejudice.

Nevertheless, the defense does not plan to raise the specter of the judge’s sexual orientation as they appeal his ruling to the 9th U.S. Circuit Court of Appeals, said Jim Campbell, a lawyer with the defense team.

“The bottom line is this case, from our perspective, is and always will be about the law and not about the judge who decides it,” Campbell said. “It’s just something that collectively as a legal team we have decided and going up, that’s what this case is. The appellate courts are going to focus on the law.”

Walker has ruled in at least two other cases involving gay rights issues during his two decades as a judge. In 1999, he rejected arguments from the parents of a San Leandro boy who claimed their religious rights were violated by pro-gay comments their son’s teacher had made in the classroom.

In the other case, he dismissed a free speech claim by two Oakland city employees whose managers had confiscated a bulletin board flier that promoted “natural family, marriage and family values.” The city had “significant interests in restricting discriminatory speech about homosexuals,” Walker wrote in his 2005 ruling.

Until this week, though, a cursory review of his legal work was more likely to produce references to a case that delayed his appointment to a federal judgeship by two years after he was nominated in the waning days of Ronald Reagan’s presidency.

An outcry from gay activists angered by Walker representation of the U.S. Olympic Committee in a lawsuit against a gay ex-Olympian who had created an athletic competition called the Gay Olympics was a big reason for the delay. Walker won the case — the Gay Oympics became the Gay Games — then aggressively pursued legal fees by attaching a $97,000 lien to the home of the organization’s founder while he was dying of AIDS.

The furor died down, although Walker occasionally became a magnet for liberal ire.

Observers usually describe him as a maverick who delights in keeping people guessing. They still are.

On the day he heard closing arguments in the gay marriage case, Walker smiled at the lawyers crowded before him at a pair of trial tables. Nearly five months had passed since the judge had heard the trial evidence.

The delay, while unfortunate, was perhaps appropriate, Walker said, a merry twinkle magnifying his cornflower eyes. “June, after all, is the month for….” He let his deep voice trail off. The predominantly gay courtroom audience froze.

Would he say it? In San Francisco, June means celebrating the gay pride the city wears like a Mardi Gras crown.

Walker waited a beat longer, savoring the pregnant pause.


Associated Press Writer Juliana Barbassa contributed to this story.

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