Prop 8 Trial Judge: Yep, He's Gay

U.S. District Court Judge Vaughn Walker's sexuality an "open secret"

Turns out 9th District Court of Appeals Judge Vaughn Walker, who is currently considering testimony in the closely watched marriage-rights case regarding the constitutionality of California's Proposition 8, is himself gay.

Not that there's anything wrong with that!

Now, this doesn't come as a surprise to many who closely follow gay-rights issues or the federal courts. State Senator Mark Leno told the Chronicle that he viewed Walker's sexuality as a "nonissue" but that it seemed curious that the sexuality of other judges involved in Prop 8 "was never discussed."

Asked if he had any problem with the issue of his sexuality being raised so publicly, Walker responded "No comment."

While it might seem like an advantage to Prop 8 proponents, Walker's sexuality doesn't provide easy grounds for an appeal should he strike down the ban on same-sex marriage.

"Every judge has a race," said David Levine, a professor at the University of California's Hastings School of Law. "Does that mean when there's a case involving racial discrimination, no judge can decide a case involving race because they have a race? No."

The defendants in the case, who are seeking to preserve the ban on gay marriage passed by voters in 2008, would have to make the argument while the case is still being tried that Walker could not judge the case without bias.

And by taking the case -- which was assigned to Walker at random -- Walker has essentially said that he is capable of ruling impartially.

“We have to assume that Judge Walker has already made the decision that he can fairly and impartially judge this matter," said Levine. "There’s no reason to disbelieve that. The judges have taken an oath to decide things on the basis of law, not on the basis of personal preferences, their personal choices or anythng else like that."

Walker isn't necessarily popular among equal-rights advocates, having argued against the San Francisco Gay Olympics as a lawyer in private practice in a trademark case brought against them by the U.S. Olympic Committee -- which he characterized to Matier and Ross as an "irony."

Walker was originally appointed to the seat by George H.W. Bush in 1989, and a "friend and confidant" among the federal judiciary noted that Walker had to fight the perception of being anti-gay to win confirmation of his appointment to the bench.

Jackson West has to give Prop 8 supporters some credit for not making this a public issue themselves.

An earlier version of this story mischaracterized Mark Leno's comments to the Chronicle on Walker's sexuality. Leno said that he found it curious that the sexuality of state justices involved in other prop 8 rulings had not been discussed.

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