The Judge in the Proposition 8 Trial is Gay, and Yes, That is a Problem

Right now in California they are carrying out a trial to determine whether Proposition 8, which changed the Constitution of California to ban gay marriage, after the California Supreme Court changed the state constitution to allow for gay marriage, is constitutional under the Federal Constitution.  You know, because those evangelical Christians who freed the slaves singing, “Glory, glory, Hallelujah” were live and let live types when it came to homosexuality.  (rolls eyes)

And now we find out that Judge Walker who is ruling over that case is gay.  Is that a problem?  Well Ed Whelan of Bench Memos says that being gay is not itself a problem, saying:

In terms of his judicial performance in the anti-Proposition 8 case, the bottom-line question that matters isn’t whether Walker is straight or gay.  It’s whether he is capable of ruling impartially.  I have no reason to doubt that there are homosexuals who could preside impartially over this case, just as I have no reason to doubt that there are heterosexuals whose bias in favor of, or against, same-sex marriage would unduly skew their handling of the case.

From the outset, Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors.  Consider his series of controversial—and, in many instances, unprecedented—decisions:

He goes on to list many reasons to doubt Judge Walker’s impartiality.  And they are all good reasons—I fully concur with him in that respect.  For instance, the per curium decision by the Supreme Court about cameras in the courtroom made it particularly obvious that Judge Walker had decided to air the case on YouTube and then tried after the fact to justify it.  And that alone should be reason enough for this judge to step aside.

But you know what?  Bluntly, the mere fact he is gay is a problem, too.

Look let me personalize this.  So let’s take an example: Loving v. Virginia.  That was the case that said that laws banning interracial marriage were unconstitutional.  That’s right, the case where they struck down tested the legality of “miscegenation” laws was called LOVING v. Virginia.  How perfect was that for a name?  It was like as if it was the state of Virginia opposed to people loving each other. 

Now in fact it was about a couple with the last name “Loving.”  I remember off hand that the wife was named Mildred, a black woman.  Her husband was white, but I forgot his name.  They had gone into Washington, D.C. to marry, and then came back to Virginia.  The cops busted in on them, and arrested them.  The law in Virginia made it a crime to leave Virginia, get married outside of one’s “race” and then return to the state, if you intended to do that all along.

So that probably means that first it went through the state Circuit Courts here in Virginia, or maybe the District Courts first if the punishment was minor enough.  Then it probably went straight to the Supreme Court of Virginia, and from there was appealed to the United States Supreme Court.  I mean I suppose it is possible to have gone the habeas corpus route, but I doubt it.

So imagine I am that lower court judge. And imagine I love the same woman I am married to today, who is mostly Filipina.  Imagine I haven’t married her yet.  Do you think I could ever rule neutrally in that case?  Of course not.  I would be ruling on my right to marry the woman I presently loved.

And of course interracial marriage is different than gay marriage.  I mean I jokingly said that when it came to dating, I practiced complete equality of opportunity on the subject of race.  That is right, I asked out and was rejected by women of all colors.  If I wasn’t currently in love with someone of another “race,” yeah such laws might be seen as reducing my options, but if I was gay, an anti-gay marriage law would keep me from marrying everyone I was likely to fall in love with.  It wouldn’t be reducing my options, it would be eliminating all of them completely.  I mean how can Judge Walker possibly be even-handed when his legal rights are on the table?

So if he is in a relationship serious enough to mean that he would like to marry that man, I don’t see how he could possibly be unbiased.  And if he was “merely” gay, the issue is not as acute, but it is there.

And of course Ed Whelan makes a great case without going after him “just” for being gay.  And I will give you the rest of his argument regarding Judge Walker’s misconduct because it is all valid:

Take, for example, Walker’s resort to procedural shenanigans and outright illegality in support of his fervent desire to broadcast the trial, in utter disregard of (if not affirmatively welcoming) the harassment and abuse that pro-Prop 8 witnesses would reasonably anticipate.  Walker’s decision was ultimately blocked by an extraordinary (and fully warranted) stay order by the Supreme Court in an opinion that was plainly a stinging rebuke of Walker’s lack of impartiality.

Take Walker’s failure to decide the case, one way or the other (as other courts have done in similar cases), as a matter of law and his concocting of supposed factual issues to be decided at trial.

Take the incredibly intrusive discovery, grossly underprotective of First Amendment associational rights, that Walker authorized into the internal communications of the Prop 8 sponsors—a ruling overturned, in part, by an extraordinary writ of mandamus issued by a Ninth Circuit panel consisting entirely of Clinton appointees.

Take Walker’s insane and unworkable inquiry into the subjective motivations of the more than seven million Californians who voted in support of Prop 8.

Take Walker’s permitting a parade of anti-Prop 8 witnesses at trial who gave lengthy testimony that had no conceivable bearing on any factual or legal issues in dispute but who provided useful theater for the anti-Prop 8 cause.

And so on.

Walker’s entire course of conduct has only one sensible explanation:  that Walker is hellbent to use the case to advance the cause of same-sex marriage.  Given his manifest inability to be impartial, Walker should have recused himself from the beginning, and he remains obligated to do so now.

Exactly.  It is time for Judge Walker to stand down.  And I will add that if this keeps up, I am seriously contemplating personally filing a complaint about his judicial conduct.

P.S.:  You can read the Ninth Circuit opinion granting mandamus here.  Lawyers know that a writ of mandamus us an “extraordinary writ” granted in only the most extraordinary situations.  It is very rare to get a mandamus to the point that most of the time I would tell my clients not to bother.

You can also read the Supreme Court per curium order on the broadcast of the trial, here.  I will say that as a general rule of thumb trials should be broadcast.  We as the public have a right to sit in the courtroom, and I tend to say f we have a right to sit in the courtroom, we usually have a right to broadcast it, too.  But just read the opinion and see how they violating every sense of due process and procedure to get to that result.  Even if I tend to agree with the result, its not enough to do the right thing, but to do the right thing the right way.