Ridiculous attack: Prop 8 judge should have recused himself because he is gay

The Washington Times is pushing the argument that federal Judge Vaughn Walker should have recused himself from Perry v. Schwarzenegger -- the case in which Walker struck down California's ban on same-sex marriage -- because Walker is a gay man.

The Washington Times reported:

University of Notre Dame law professor Gerard V. Bradley, who said much of Judge Walker's actions during the trial were “bizarre,” should have recused himself, because "(as several newspapers have reported) the judge is openly gay." The Los Angeles Times and San Francisco Chronicle have both reported that Judge Walker's sexuality, though he is not “out,” is an open secret in California gay and legal circles.

However, by that logic, straight judges who have ruled against gay rights should have recused themselves from those cases. After all, proponents of Proposition 8 argued that the ban on same-sex marriage was “about preserving marriage” as it has been traditionally defined. Presumably that logic would extend to other arguments against gay rights.

This argument is so ridiculous, in fact, that of the 712 documents filed by the litigants, the judge, and the clerk in the case so far (according to the federal court's Pacer system), not one includes a motion asking Walker to recuse himself.

The list of straight judges who have ruled against gay rights includes Supreme Court Justice Antonin Scalia who railed against the “homosexual agenda” in Lawrence v. Texas, the landmark 2003 ruling which struck down Texas' law banning sex acts between consenting adults of the same sex, 6-3.

In the Lawrence dissent, Scalia -- joined by Chief Justice William Rehnquist and Justice Clarence Thomas -- wrote:

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.

Several years prior to that, in 1996, Scalia dissented in Romer v. Evans, which struck down an amendment to the Colorado constitution preventing protected status under the law for the gay community. Again, Rehnquist and Thomas joined Scalia in his dissent, which said:

This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that “animosity” toward homosexuality... is evil. I vigorously dissent.

In Bowers v. Hardwick, the 1986 Supreme Court ruling that upheld the constitutionality of a Georgia sodomy law, the majority opinion said:

The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time.


No connection between family, marriage, or procreation, on the one hand, and homosexual activity, on the other, has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.


Precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.

The opinion was written by Justice Byron White and joined by Chief Justice Warren Burger and Justices Lewis Powell, Sandra Day O'Connor and Rehnquist. (Nearly 20 years later, Bowers was overruled by Lawrence.)

Other judges have also ruled against gay rights without being questioned on whether they should have recused themselves because of their sexual orientation.

UPDATE: It gets worse. The Washington Times is actually mischaracterizing Notre Dame law professor Gerard V. Bradley argument that Walker should have recused himself. Bradley actually made a slightly different (but still unreasonable) point. In a Foxnews.com opinion piece, Bradley stated:

The neglected bias in the Prop. 8 trial has instead to do with the fact that - as reported in The Los Angeles Times last month - Judge Walker “attends bar functions with a companion, a physician.”

If (as The Times suggests) Judge Walker is in a stable same-sex relationship, then he might wish or even expect to wed should same-sex marriage become legally available in California.

This raises an important and serious question about his fitness to preside over the case. Yet it is a question that received almost no attention.

When a judge is obliged to withdraw from a case due to a conflicting interest we call it “recusal.”

Federal law requires that, whenever a judge knows that he has “any other interest [ that is, besides a financial interest] that could be substantially affected by the outcome of the proceeding” at hand, or when “his impartiality might reasonably be questioned”, he must recuse himself.

I am not saying that Judge Walker should have refused himself in Perry v. Schwarzenegger.

I am not saying so because nowhere (as far as I know) has Judge Walker volunteered or been made to answer questions about how the outcome of that case would affect his interest (whatever it is) in marrying, and thus his interest in the manifold tangible and intangible benefits of doing so.

That is a conversation worth having.

And, sadly, it is quite too late to have it.