California | Federal Prop 8 Trial | Gay Marriage | News | Proposition 8 | Vaughn Walker

NOM Attacks, SF Chronicle Defends Impartiality of Gay Prop 8 Judge

On Sunday, the SF Chronicle "outed" Prop 8 trial Judge Vaughn Walker (at least, was the first mainstream media to do so — it was an "open secret" as they said). In the article, it was predicted that Walker would be attacked for having bias in the case.

So, predictably, the National Organization for Marriage has come completely unhinged. Writes Brian Brown in NOM's typically paranoid and victimized fashion:

Brown We have no idea whether the report is true or not. But we do know one really big important fact about Judge Walker: He’s been an amazingly biased and one-sided force throughout this trial, far more akin to an activist than a neutral referee. That’s no secret at all.

Protect Marriage, the defendants in this case are effectively being held hostage by Judge Walker and cannot really comment.


Walker has presided over a show trial designed to generate sympathetic headlines and news coverage for gay marriage supporters. Witness after witness was allowed to testify about their “expert” opinion that homosexuals have been discriminated against, that they feel badly when society does not validate their relationships, and that the passage of Prop 8 was simply an echo of historic prejudice and bigotry foisted on society by religious zealots.


Judge Walker’s bias has been so extreme, he’s earned a rare judicial “twofer.” Key elements of his “fishing expedition” rulings were already reversed by the Ninth Circuit Court of Appeals (notably one of the most liberal in the nation) and the Supreme Court had to step in to block his illegal attempt to broadcast the trial.

It is highly unusual for a higher court to have to intercede in a trial judge’s handling of a trial while it is going on — yet Walker has had that “distinction” twice in the same case — and we’re not yet even at closing arguments.

There’s only one saving grace to Judge Walker’s bias. It’s so big, and so obvious, not only the American public but the Supreme Court itself is already aware we have bias in the trial judge presiding.

Karen Ocamb at LGBT POV handily takes apart Brown's arguments.

Walker The SF Chronicle came out today in defense of Walker's impartiality:

Today, at age 65, Judge Walker is presiding over the challenge to Proposition 8, which may well determine how quickly gays and lesbians achieve full marriage equality in this country. We now know what Walker never bothered to reveal when he was being castigated as anti-gay: He is gay, which changes neither his legal history nor his fitness for this assignment.

A judge's sexual orientation does not inherently shade his ability to read and interpret the U.S. Constitution with clear-eyed wisdom. Assuming this case advances on appeal, no matter how Walker rules, there almost certainly will be jurists who will need to set aside their religion's teachings - and, quite likely, the impact of their ruling on close friends or even a family member - as they do their utmost to uphold the meaning of the Constitution.

Walker did not think his private life was relevant to his ability to preside with fairness in the Prop. 8 trial. There is nothing in his long and laudable career to suggest otherwise.

And Chronicle columnist Debra Saunders asks, "Does Walker have a conflict?"

Until Sunday, it seemed inevitable that however Walker ruled, the losing side would bring up his sexual orientation. If he overturned the measure, losers would hit the conservative media to argue that with a gay judge presiding, the fix was in from the start. If Walker upheld the measure, angry gay activists would denounce him as a self-loathing turncoat.

Now, whatever Walker decides, the public can't complain that he had a sub rosa agenda.

Walker is not a predictable man. As a private attorney, he tangled with San Francisco's Gay Olympics to protect the U.S. Olympic Committee's brand name. Appointed to the bench by President George H.W. Bush, Walker's libertarian streak has led him to advocate legalizing drugs.

But I still wonder if he should have recused himself from this case.

There are strong reasons not to. After all, at The Chronicle, gay reporters can and do cover gay issues with the advantage of personal insight. Some might claim that they are biased, but it's not as if there is a neutral identity - straight? white? male? - that is free from bias.

And where does it end? Should a Mormon judge have to recuse himself? A devout Catholic?

A lawyer friend explained to me that a federal judge constantly has to preside over cases argued by former associates and friends, yet the expectation of impartiality remains. To recuse oneself because of broad identity issues, this lawyer argued, would be to admit to being influenced by extra-legal considerations.

I've got a bad feeling we'll never hear the end of this.

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  1. During the civil rights struggle in Alabama, thank god for Federal Judge Myron Thompson, an African American who was randomly selected to hear many cases. If they claim Judge Walker is biased for being gay, then a straight judge should also be determined to be biased. Is NOM saying they must have a celebrate judge?!

    Posted by: Leto | Feb 9, 2010 8:40:15 AM

  2. Castrati, eunuchs, and post-menopausal nuns for judges!! yay!!

    Posted by: shane | Feb 9, 2010 8:48:34 AM

  3. I think I slept with this Brown guy, when he was in Chicago....he said he was a top, but turned out not to be...

    Posted by: mattchicago | Feb 9, 2010 9:00:52 AM

  4. So Matt, does Mr. Brown live up to his name? He looks like someone who'd be into that.

    Not judging!

    Posted by: crispy | Feb 9, 2010 9:20:59 AM

  5. Why do they waste their time with this charade if it'll be appealed all the way up to the supreme court no matter what?! Just to lay out the "arguments" (ha! as if those were rocket science) in advance?

    Posted by: galore | Feb 9, 2010 9:27:57 AM

  6. I agree with LETO. If a gay judge is going to rule in favor of allowing gay marriage, does that mean a straight judge is going to rule in favor of banning it?

    Posted by: Kelvin | Feb 9, 2010 9:46:39 AM

  7. I suppose this means any straight judge would be inherently biased in favor of Prop 8? Give me a break.

    Posted by: Bill | Feb 9, 2010 9:56:44 AM

  8. Wouldn't saying that Brown would be biased in a case like this be about the same thing as saying that a black judge should not preside over a trial involving a black plaintiff or defendant?

    Posted by: Jay | Feb 9, 2010 10:26:12 AM

  9. Thanks gay media for once again playing right into the hands of the enemy. No respectable news outlet brought out this "fact" because it is clearly not relevant to the case. Judge Brown has shown himself to be a meticulously fair jurist over the years and was assigned this case at random. For this question to be raised is an insult to all gay and lesbian judges in the country.

    Posted by: niles | Feb 9, 2010 11:05:19 AM

  10. @Niles

    Uh...The San Francisco Chronicle IS a respectable news outlet, not a gay paper.

    Posted by: Chitown Kev | Feb 9, 2010 11:13:25 AM

  11. @ Jay and Niles - It’s actually Judge WALKER. Brown is the tool from NOM. Not trying to be a jerk, I would just hate for folks to confuse the two...

    Posted by: ichabod | Feb 9, 2010 11:17:11 AM

  12. Had Judge Walker been found to be straight, then I suppose that would mean that he could be considered totally unbiased.

    Posted by: Stephen | Feb 9, 2010 11:39:18 AM

  13. Of all of the fucking short straws, we fucking had to draw this one?????????????????


    I have read ALL the transcripts and can say that Walker did not show bias.

    However, it doesn't take a genius to figure out where the enemy will take this.

    Walker should not have taken this case. Period. He's a 65 year old judge. That would indicate an ounce of intelligence. He has lived in this world as a gay man. As such, he has experienced, somewhere along the way, they hatred with which heterosexuals treat their gay children. His intelligence should have led him to this moment. Where his sexuality is revealed, and becomes a circus. Sorry, Walker, but if you really ARE a gay man, YOU HAVE FUCKED US ALL.

    It's weird. I really liked him until I found out he is gay. Now I am just pissed off at him that he apparently does not have the intelligence to see where this inevitably leads. Instead, choosing to remain on such a landmark case for a taste of fame rather than considering the thousands upon thousands of LGTB Americans whose lives are directly affected by this trial.

    I saw no bias. I read ALL the transcripts. Each and every word.

    But that doesn't matter. The NOM-heads and PUG-nos will not let this opportunity pass them by. And they will whip this up into a gay-judge cream and serve it to their $$$followers$$$who'll just eat this shit up with a spoon.

    I am fucking pissed off. Pissed the FUCK off.

    Posted by: Bill | Feb 9, 2010 11:59:45 AM

  14. @Bill - calm down. Obviously there will be an appeal, regardless of the judge. Better to have someone with a well-written, thoughtful argument on record. So, in all, it's helpful if he's a good judge and puts effort into the decision. Whether he were gay or straight, that decision would be appealed.

    Posted by: me | Feb 9, 2010 12:12:28 PM

  15. Couldn't we also argue that a *straight* judge is biased for the other side?

    Think it through, guys.

    Posted by: Steve | Feb 9, 2010 12:13:45 PM

  16. I agree with earlier comments. Isn't it just as biased for a straight judge to be influence to uphold prop 8.

    Also isn't it ironic that NOM, who considers, GLBT community as non-essential to institutions and policy, is pointing out that this 1 judge who is gay is in part making a decision on "straight" policy. Now NOM knows how it feels when the shoe is on the other foot.

    Posted by: jakeinlove | Feb 9, 2010 12:19:47 PM

  17. I would love to see our side ask Scalia to recuse himself when this reaches the Supreme Court because he is a devout catholic and has made many anti-gay comments. If their side wants to take this road then we would have every right to do just that.

    Posted by: Happily Married | Feb 9, 2010 12:23:04 PM

  18. Duh. I know there will be an appeal. There will be 2 appeals, actually.

    Judge Walker KNEW this would come out. As such, HE SHOULD HAVE RECUSED HIMSELF to avoid this altogether. It sullies the process.

    Gay citizens DO NOT receive fair and equal treatment under the law. Walker knows this. He had no business taking this case. Since it was randomly assigned, it could have been randomly re-assigned.

    Calm down??? Um, OK.

    The right-wingers will use this and use this and use this and use this in ANY and EVERY way possible. It has forever tainted our case, win or lose. For the remainder of your life, whenever the case is discussed it will be, "Oh, ya know, the judge was gay.. blah, blah, blah..."

    Sorry. I stand by my panic attack. Walker should not have taken the case. Period.

    All of you saying that he should have and that it is no big deal either live under a rock or simply refuse to accepts that LGTB Americans do not get a fair shake where the law is concerned. It is ALWAYS us who bear the burden of unequal laws. Walker knows this. How can he not???

    Go take a look at NOM's web site and tell me that this isn't going to turn into a freakin' nightmare.

    Posted by: Bill | Feb 9, 2010 12:33:00 PM

  19. Yeah, without the panic attack, I also think Judge Walker would have done better to avoid the obvious backlash and admittedly absurd tainting, but tainting nonetheless, of his eventual decision. Heck, I know he's no more biased than a straight judge would be, but STILL I will have a slightly nagging suspicion that he had a horse in this race and couldn't help but be guided accordingly. And that's me - a reasonably rational gay man.

    Posted by: Zlick | Feb 9, 2010 1:13:48 PM

  20. Don't forget that heterosexual judges have a sexual orientation too.

    Posted by: Wrecks | Feb 9, 2010 1:35:04 PM

  21. @Bill, when you finally take your head out of your ass, let us know. Perhaps an increase in the meds might help you, um, reason this one out.

    Posted by: jamal49 | Feb 9, 2010 1:40:12 PM

  22. Seriously, bill--you realize that even if the judge were straight, NOM would use its propaganda to discredit him/her anyway, right? NOM employs people like brown and babe to lie with every breath they can draw about every facet of homosexuality. They are a well funded Mormon hate group.

    This is all spin--truth doesn't matter here, and babe and the rest of the NOM mormon ss realize this. The best thing to do with them is constantly assail their credibility, for they have none, and call them out on what they are: bigots. Jeez, you want to make someone or something irrelevant? You destroy their public perception. And it doesn't take everyone agreeing with you to do that.

    That's right, we're more than just hair stylists, interior decorators, and fashion designers. Idiots.

    Posted by: TANK | Feb 9, 2010 2:01:40 PM

  23. I wonder if bigotted defense attorneys working for a corporation that discriminates against african americans would go to the press screaming that an African American judge had no ability to try a case of racial discrimination.

    Posted by: stolidog | Feb 9, 2010 2:27:33 PM

  24. The NOM claim that Judge Walker should have disqualified himself, or that he is biased, is absurd. As others have posted, must an African-American judge be disqualified from hearing claims of job discrimination involving an African-American? Or a woman judge be disqualified from hearing claims of gender discrimination in university sports programs? Or a Catholic or other 'religious' judge be disqualified from hearing a case where the defense to a religious discrimination claim (example, a Catholic school has discriminated by refusing to hire Baptist teachers) is that to require non-discrimination by the employer would violate the employer's religious rights (example, the Catholic school's religious rights would be violated if it had to hire Baptists)??

    On second thought, maybe there should be disqualification -- because that would mean that Supreme Court Justices Scalia and Thomas (and others) should also be disqualified from hearing certain Supreme Court cases that involve "religious" defense arguments. If your read opinions written by Scalia and Thomas (and others), you can see how their personal "religious" convictions color their opinions which tend to uphold the right of "religious" employers and other institutions to discriminate on religious grounds.

    Wow, IMAGINE A SUPREME COURT where Scalia and Thomas couldn't vote on cases that had a significant 'religious' claim or defense?? So maybe if Judge Walker needs to be disqualified from this gay because he's gay, then we can get Scalia and Thomas disqualified because they are openly "religious".

    Posted by: MiddleOfTheRoader | Feb 9, 2010 2:49:02 PM

  25. I am of two minds here. My initial reaction was of apprehension, believing that if Judge Walker in any way overturns Prop 8, the Defense will try to cloud public opinion -- and will claim the appeals process is tainted by the evidence and testimony he did and did not allow.

    But I am also a little apprehensive about the precedent it would set regarding "identity politics." I did a little Googling this morning to find other examples of minority judges presiding over civil rights cases. My best example is of Thurgood Marshall, who was appointed to the US Supreme Court in 1967, the first African American ever appointed, where he served for 24 years. This was after a distinguished career as a civil rights attorney, including arguing the successful Brown v. Board of Ed case before the Supreme Court.

    During his 24 year tenure, SCOTUS heard quite a number of civil rights cases, including (I've used *** to identify the ones that specifically relate to African Americans):

    *** Jones v. Mayer Co. (1968): The Court held in this case that federal law bars all racial discrimination (private or public), in sale or rental of property.

    *** Griggs v. Duke Power Co. (1971) In this case, the Court decided that certain education requirements and intelligence tests used as conditions of employment acted to exclude African-American job applicants, did not relate to job performance, and were prohibited.

    * Lau v. Nichols (1973): The Court found that a city school system's failure to provide English language instruction to students of Chinese ancestry amounted to unlawful discrimination.

    * Roe v. Wade (1973): In this landmark case, the Court decided that a woman's right to abortion is part of the constitutional right to privacy.

    * Cleveland Bd. of Ed. v. LaFleur (1974): Found that Ohio public school mandatory maternity leave rules for pregnant teachers violate constitutional guarantees of due process.

    *** Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977): In this case, the Court declared that proof of a racially discriminatory intent is required in claim that race was a motivating factor in a land zoning decision.

    *** University of California Regents v. Bakke (1978) : The Court decides that a public university may take race into account as a factor in admissions decisions.

    *** Batson v. Kentucky (1986): This decision holds that a state denies an African-American defendant equal protection when it puts him on trial before a jury from which members of his race have been purposefully excluded.

    * Bowers v. Hardwick (1986): The Court holds that a Georgia statute criminalizing same-sex sodomy is constitutional.

    * Meritor Savings Bank v. Vinson (1986): Found that a claim of "hostile environment" sexual harassment is a form of sex discrimination that may be brought under Title VII of the Civil Rights Act of 1964.

    * Johnson v. Transportation Agency (1987): The Court decides that a county transportation agency appropriately took into account an employee's sex as one factor in determining whether she should be promoted.

    * Oncale v. Sundowner Offshore Serv., Inc. (1987): In this case, the Court held that sex discrimination consisting of same-sex sexual harassment can form the basis for a valid claim under Title VII of the Civil Rights Act of 1964.

    * Franklin v. Gwinnett County Public Schools (1992): The Court decided that an award of money damages is possible in a case brought to enforce Title IX of the Education Amendments of 1972, alleging sexual harassment and abuse by a teacher.

    Justice Marshall did not recuse himself in any of the civil rights cases that affected African Americans. Nor did Sandra Day O'Connor recuse herself in any of the post-1981 cases that directly affected women.

    Posted by: Grey | Feb 9, 2010 3:27:45 PM

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