I find myself troubled by the aspersions cast by some conservatives towards U.S. District Court Judge Vaughn Walker following his decision to overturn California Proposition 8 last week. What I find most troubling is the commentary directed towards Walker's sexual orientation or rather his purported sexual orientation.
Maggie Gallagher, president of the National Organization for Marriage, said of Judge Walker, "Here we have an openly gay federal judge, according to The San Francisco Chronicle, substituting his views for those of the American people." Tony Perkins, president of the Family Research Council, also made similar remarks. During an appearance on the CBS Sunday show Face the Nation, Perkins stated, "What you have is one judge, a district level judge, and an openly homosexual judge at that, who says he knows better than not only than seven millions voters in the State of California but voters in thirty states across the nation." When guest host John Dickerson challenged Perkins on whether Walker is actually openly gay, Perkins replied, "Well, that according to the San Francisco Chronicle that he is openly homosexual."
Both Gallagher and Perkins are incorrect. The San Francisco Chronicle article in question does not identify Judge Walker as being "openly gay." The article, written by Phillip Matier and Andrew Ross in February 2010, states that a number of unnamed gay politicians and lawyers in San Francisco who know Walker make the observation that he "has never taken pains to disguise -- or advertise -- his orientation." In fact, Matier and Ross note that Walker declined to comment about his sexual orientation when they asked him about it. If one declines to state one's sexual orientation when asked it is a fairly good indication the person in question is not openly gay.
Nonetheless, opponents of Prop 8 feared that Walker's purported sexual orientation would be raised by supporters of Prop 8 if he were to declare it unconstitutional. Later in the article, Andy Pugno, the General Counsel of ProtectMarriage.com (the proponents of Prop 8), said Judge Walker's purported sexual orientation would not become public fodder. Pugno stated, "We're not going to say anything about that." It is a shame that neither Gallagher nor Perkins followed Pugno's prudent advice.
But suppose Gallagher and Perkins are correct in stating that Judge Walker is gay (even if he is not openly so.) If they are prepared to use Judge Walker's sexual orientation as a means by which to publicly question his judicial integrity then they ought to be prepared to question the judicial integrity of a Catholic who has a case concerning child sexual abuse by a priest come before her or question the judicial integrity of an Evangelical Christian who has a case concerning the placement of The Ten Commandments in the public square come before him. Yet I cannot imagine for a second that they would and nor should they. The only circumstance under which a jurist's religious persuasion, sexual orientation, etc., should become relevant is if he or she were to make a public comment outside the courtroom that would compromise their ability to adjudicate the case before them in a fair and impartial manner.
This isn't to say that Judge Walker is beyond criticism. A higher court might very well overturn his decision. But if a higher court does overturn Walker's ruling it will be because of factual and legal flaws inside his 136-page decision, not because of how he lives his life outside the courtroom. Just as I think it is wrong to read things into Arizona's immigration law that aren't there I think it is equally wrong to read things that aren't in Judge Walker's ruling.
But don't Gallagher and Perkins have other valid arguments? When Gallagher and Perkins commented on Walker's purported sexual orientation they did so in the context of arguing that his opinion should not outweigh the opinions of the millions of Californians who voted in favor of Prop 8 in November 2008. Yet one can make this argument without making Judge Walker's purported sexual orientation an issue as Rich Lowry, editor of National Review, had the good sense to do when he wrote about Walker's ruling:
In his decision, the judge issued 80 "findings of fact." All said findings and all said facts happen to support his belief that Proposition 8 was so errant that a bolt of lightning should have struck it from the ballot. For the sake of argument, let's stipulate that Judge Walker is right. In that case, he and like-minded people should come up with, say, Proposition 9 overturning the ban and persuade 50.1 percent of Californians to support it. How difficult can that be given that, per Judge Walker, every single fact is on their side?
But is Lowry suggesting that the outcome of a popular referendum is beyond judicial scrutiny? Is Lowry suggesting that individuals who have their rights abridged as a result of Prop 8 cannot redress their grievances and seek relief from the courts as Kristin Perry, Sandra Stier, Paul Katami and Jeffrey Zarrillo did when they brought this lawsuit? I don't recall any objection from Lowry when the National Rifle Association sued the village of Oak Park, Illinois in 2008 for its handgun ban which was approved by referendum in 1984.
As for holding a Proposition 9 to overturn California's ban on gay marriage, Walker cites West Virginia State Board of Education v. Barnette, a 1943 U.S. Supreme Court decision which states, "other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." There is an excellent debate to be had as to whether it is appropriate to use referenda when determining who can and cannot marry.
If my fellow conservatives wish to disagree with Judge Walker's ruling then their objections should be directed towards what transpires inside his courtroom, not his bedroom.
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