Shortly after he retired, the federal judge who struck down California’s voter-approved ban on same-sex marriage acknowledged publicly what had been rumoured for months: He is gay and in a long-term relationship with another man.
Opponents of same-sex marriage seized on Vaughn Walker’s revelation and filed a motion last week to have his ruling on Proposition 8 vacated, arguing that he could benefit personally from his decision if he wanted to marry his partner.
Although unusual, the effort could have legal merit, some experts say. If successful, it could mark the first time a judge has been disqualified or rebuked for issues related to his sexual orientation. And it would be a setback for gay rights groups, which view his opinion on Proposition 8 as one of their most significant victories in the quest for equal rights for same-sex couples.
While it is generally held that judges may not be removed because of their religion or minority status, experts say Proposition 8’s backers have come up with a novel strategy that reignites a complex, emotional debate.
In the 1960s and ’70s, many questioned whether female or black judges could fairly decide cases of sex or race discrimination, said Stephen Gillers, a law professor at New York University who teaches legal ethics.
“Appellate courts quickly and correctly held that a judge’s sex and race have no bearing on the ability to decide cases impartially,” he said. “Now we’re seeing the issue arise based on sexual identity because the idea of a gay judge is, for many, new.”
As recently as 1998, an Asian American judge sanctioned two lawyers who asked that he be removed from a case in part because of his ethnicity.
In Walker’s case, those challenging his ruling say they are not taking issue with his sexual orientation, nor do they contend that a gay person would be unfit to preside over the case. The issue, they say, is that Walker could directly benefit from his ruling and that he should have disclosed in court whether he intended to marry.
To many others, no matter how nuanced the argument is, it amounts to one thing: an attempt to discredit a judge simply because he is gay.
“Would they try this with another judge in a different class? If the issue is equal pay for equal work, does it mean that no woman could hear that case?” said Tom Chiola, a retired circuit judge and the first openly gay candidate elected to public office in Illinois. “Where does this line of argument end?”
Some legal experts played down the likelihood that the challenge will succeed.
“It’s pretty well understood that status-based motions to disqualify are not going to float,” said Charles Geyh, an Indiana University law school professor who is an expert on judicial ethics.
But the debate, he said, could have a chilling effect on other gay judges who may be called upon to rule on same-sex marriage as the issue works its way through the courts. Already, more than a dozen lawsuits have been filed across the country challenging laws that limit the rights of gay couples to marry or qualify for benefits.
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