In Prop 8 Trial an Open and Irrelevant Secret

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.

Obviously, there are circumstances where judges must be disqualified. The rules concerning judicial ethics specify many such instances. For example, if a judge or a member of the judge's family has a financial interest that would be affected by the case -- no matter how small -- then disqualification is required. Likewise, a judge cannot participate in a case if the judge or a family member is involved in the litigation. But the mere fact that a judge conceivably might be affected, or that a judge has views on the issue, isn't sufficient for disqualification or for criticizing the judge for hearing the matter.

Indeed, to listen to the supporters of Prop. 8, everyone in society is affected by marriage equality, regardless of sexual orientation. A central argument against allowing gays and lesbians to marry has been that it will harm the institution of marriage. This seems a silly argument, but it certainly means that there is no judge who would be unaffected by the constitutionality of Prop. 8.

Ultimately, the ninth circuit court of appeals, and perhaps the U.S. Supreme Court, will have to decide whether Prop. 8 violates the U.S. Constitution. Judge Walker, as the district court judge, is playing a key role in developing the record and in issuing the initial ruling. I am hopeful that he will do the right thing and conclude that gays and lesbians have the same right to express love and commitment, the same right to gain the legal benefits of marriage, the same right to experience the joys and disappointments of marriage as heterosexual men and women always have had. But whatever his ruling, his sexual orientation is a private matter and irrelevant to his hearing the case.