Not until the end of the article reporting (something of which I had heretofore been aware) that Chief U.S. District Judge Vaughn Walker, “the federal judge who will decide . . . the landmark trial over same-sex marriage” is himself gay, does the reporter see fit to quote anyone critical of the judge. Instead, he first cites two left-wing gay activists praising the judge.
Now, I know very little about the judge, certainly not enough to call his overall impartiality into question–though the way he has conducted this trial certainly sets off some alarm bells. It strikes me as odd that he has allowed the plaintiffs to bring in certain witnesses whose commentary on gay marriage would certainly be relevant were the issue debated in the legislature or presented to the people, but is entirely irrelevant to a court considering whether a popular provision in the state constitution violates the federal constitution.
All reports (at least those I have read), for example, show that Jerry Sanders is a fine Mayor of San Diego, but he is no legal scholar. His remarks on gay marriage belong in a political campaign, not a court of law. That Judge Walker allowed his testimony as well as other personal stories suggests poor judging. But, many straight judges would also allow in such “witnesses.”
As a gay man who believes the Judge should have dismissed the case before it even came to trial, I know it’s not his sexuality that’s the issue, but his jurisprudence.* All that said, should this one man rule to overturn the will of seven million, you can bet the proponent of the Proposition will make an issue of his sexuality. Indeed, some already are. Ed Whelan, offering some sound criticism of the judge’s questionable judgments, point outs:
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. . . .
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.
Another conservative blogger is mocking him. And frankly, I don’t blame him. Touchy-feely is not the way to run a courtroom.
It’s too bad Judge Walker has shown such poor judgment in letting a parade of witnesses to make a case more appropriate to the public square and in his federal courtroom. Had he exercised better judgment, no one would be making an issue of his sexuality.
Perhaps, he might consider the backlash that will ensue should he rule to overturn Prop 8. Not only will that motivate opponents of gay marriage, but it will also raise the hopes of its advocates. And they will likely experience the same disappointment they felt when voters overturned the California Supreme Court decision mandating state recognition of same-sex marriage when appellate courts overturn his decision on appeal. (And the same disappointment when the state Supreme Court upheld Prop. 8.)
Instead of returning to the courthouse time after time after time, gay marriage advocates need focus on convincing the people of California (an other jurisdictions) of the merits of same-sex marriage so they can enact laws sure to survive constitutional and popular scrutiny. But, as we’ve seen before that they’ve long been loath to do that.
*Many judges holding a similarly liberal interpretation of the Equal Protection Clause would have done exactly the same thing he has done–even if they weren’t gay.