BY Advocate Contributors

February 10 2010 5:10 PM ET

Editor's note: In a February 7 column, the San Francisco Chronicle reported on “the biggest open secret in the landmark trial over same-sex marriage”: that U.S. district judge Vaughn R. Walker, who is presiding over the federal lawsuit challenging California’s Proposition 8, is gay. Erwin Chemerinsky, a top constitutional law scholar and founding dean of the University of California, Irvine, School of Law, discusses the ramifications of the outing, and what effect — if any — it has on the case.

Judges constantly decide cases that might personally affect them or their family members. Female judges of reproductive age are allowed to decide cases involving the availability of abortion. Catholic judges can hear challenges to abortion laws even if their church threatens to deny them communion if they support abortion rights. Judges who are also parents can hear challenges to affirmative action programs even if they have children who might benefit or be hurt by the eventual decision.

The list of situations in which a judge’s life might be affected by the decision is endless. This is insufficient by itself to challenge a judge’s hearing of a case or an ultimate decision.

Judge Walker’s sexual orientation has no relevance to his hearing the case challenging Proposition 8, the California initiative that amended the state’s constitution to ban same-sex marriage. No one knows what Walker’s views are regarding marriage equality. He was appointed to the bench by President George H.W. Bush. Overall, he has the reputation of being a conservative, though perhaps libertarian, judge. A position cannot be inferred from his sexual orientation, even assuming the rumors about it are true. Many gays and lesbians reject the institution of marriage, and there is no way to know what, if anything, Walker thinks on the issue before him as to whether Prop. 8 violates the U.S. Constitution.

And even if his views were known, that doesn’t require his disqualification. Everyone knows how Justice Antonin Scalia or Justice Ruth Bader Ginsburg will vote when the Supreme Court is next asked to overrule Roe v. Wade. Yet no one would ever suggest that this requires their recusal. Judges inevitably have views on the issues that will come before them. In fact, as a lawyer, I’d always much rather know the judge’s views and try to tailor my arguments to persuade him or her than pretend that the judge has no positions.









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