Judicial Ethicists: Latest Arguments Against Prop 8 Judge Are Meritless

Blog ››› ››› ADAM SHAH

Since Judge Vaughn Walker, the federal judge who struck down California's ban on same sex marriage, disclosed that he is gay and in a long-term relationship members of the right-wing media have revived their campaign to have Walker disqualified from the case. Their campaign has culminated in a motion filed by opponents of same-sex marriage to vacate Walker's same-sex marriage ruling.

National Review Online blogger Ed Whelan has claimed that the motion to vacate Walker's ruling "elaborates the argument" he himself has made about why Walker should be disqualified from the case.

But several judicial ethicists agree that the arguments for why Walker should be disqualified from the case do not stand up to scrutiny.

Samford University's Cumberland School of Law Professor William G. Ross stated in a phone call with Media Matters that based on the arguments put forward by the opponents of same-sex marriage, "a reasonable person wouldn't believe [Walker] was biased."

New York University Law Professor Stephen Gillers stated in an e-mail that "[t]he fact that Walker is gay standing alone is not a basis for recusal. The fact that he is in a long term relationship with another man also is not by itself a basis for recusal."

Hofstra University Law Professor Monroe H. Freedman stated in a phone call that "simply being gay and in a gay relationship" is not a reason for recusal.

In addition, the Associated Press reported:

DePaul University College of Law professor Jeffrey Shaman, co-author of a widely used textbook on judicial conduct, said the fact that Walker was rumored to be gay from the moment he randomly drew the Proposition 8 case "somewhat undercuts the argument that he should have disclosed he was in a long-term relationship."

Lawyers for backers of the ban seem to be grasping at straws in making their argument against the now-retired Walker, Shaman said.

"But it's their prerogative to do this as lawyers," Shaman said. "It might indicate they are worried about the judge's opinion, which was such a strong opinion, and they are trying to make an end run around it."

Ross also stated that Walker's "mere status as a self-identified gay person" is "no basis for recusal." Sexual orientation is "no more relevant" to a judge's ability to sit on a case than is "race or gender." Furthermore, the fact that Walker was in a "long-term relationship is not enough" to require disqualification.

Ross stated that it is "too speculative" to believe that Walker has an interest in marriage just because he is in a long-term relationship. Ross pointed out that Walker "could have gone to another state" if he had wanted to get married.

Ross also said the argument that Walker may have a financial stake in permitting same-sex marriage is "extremely weak" and "builds speculation on speculation."

In his e-mail, Gillers stated:

1. The fact that Walker is gay standing alone is not a basis for recusal. The fact that he is in a long term relationship with another man also is not by itself a basis for recusal. The relationship could have been a basis for recusal IF (I stress "if") Walker wanted to marry his partner AND wanted to do so in California, but Prop. 8 stood in his way. He should not then have ruled on the single impediment to his goal of marrying in California.

2. But there is no reason to conclude this was his goal. He did not marry his partner in the state prior to Prop. 8, in the window of time available to do so. Nor has he married anywhere else. Since there is no reason to believe that Walker wishes to marry his partner in California, the defendants cannot meet their burden of proving a basis for recusal and he was free to sit.

3. There is also the waiver issue. Though not confirmed by Walker during the trial, the likelihood that he is gay was generally known and discussed. It is incumbent on a party seeking recusal to raise the issue in a timely fashion. The defendants had a basis for pursuing any possible reason to recuse Walker and did not. A litigant who knows the score cannot wait to see the judge's ruling and, when it loses, decide it wants a new judge.

4. Ordinarily, it's far better for judges to put on the record any facts that could serve as the basis to recuse even if they would be inclined to reject such a motion. It gives the parties a chance to make their record. Perhaps they can change the judge's mind and in any event they can then preserve the issue for appellate review. But when the fact is as personal as sexual identity and since Walker had no interest in a marriage in California, then he was justified in choosing to maintain his privacy. Absent that interest - a fact only he knows - there is no basis to recuse and nothing to put on the record.

And Freedman stated in an e-mail:

As explained in Understanding Lawyers' Ethics (4th ed., 2010), they are correct that Judge Walker's interest as a gay man who is in a committed relationship falls within the literal terms of the statute. As also explained in ULE, they fail to understand that a number of exceptions have been read into the statute pursuant to the Rule of Reason.

If they were correct, for example, no member of religious group that actively opposes homosexuality or same-sex marriage could sit on the case. Nor could an African-American judge sit in a school segregation case if the judge did not avow that he or she had no intention of ever sending a child to an integrated school, and had no close relative who might send a child to an integrated school. Also, a woman judge could not decide a gender discrimination case because her own job status might some day be affected by the outcome. And no judge of either gender could sit on a gender discrimination case if the judge had a close relative in the work force.

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