The outing of Judge Vaughn Walker
Going underneath Judge Vaughn Walker's robes
Judge Vaughn Walker is the federal judge overseeing the much-discussed (but not-seen) same-sex marriage trial in San Francisco. While the world is waiting for Judge Walker’s decision on the constitutionality of Proposition 8, the San Francisco Chronicle decided it was a good time to share something it described as the landmark trial’s “biggest open secret:” Judge Walker is into the same-sex thing himself.
Michael Petrelis “raised the rainbow flags” about Judge Walker back in July 2009, which was picked up a few days later by the popular gay blog, Queerty. Both of these posts were speculative though. The San Francisco Chronicle article was a firm declaration about Walker being gay; it was the first mainstream media mention of Walker’s sexuality and it was the first time this came onto most people’s “gaydars.”
Over at Above the Law, though, we’ve known this for a while. But we didn’t publish it.
I had a conversation with my colleague David Lat — Above the Law’s founding and managing editor — this evening about why we kept Walker in the closet, and what his outing means for the discussion about judicial diversity.
I realize an interview with a colleague about your site’s coverage is an exercise in extreme navel-gazing, but I think this is a pretty interesting navel…
Hill: Dave, this has been on your “gaydar” for a while, hasn’t it?
Lat: It has. In September [2009] at the Lavendar Law conference [Ed. note: an annual conference for LGBT lawyers], a conference speaker and prominent gay litigator told me definitively that Judge Walker was gay. It was not speculative as in those July Queerty and Petrelis Files posts. He told me flat out that Judge Walker was gay. He told me essentially what was in the San Francisco Chronicle article: that it was an open secret and everyone in San Francisco knows this.
Hill: Did you think about writing about it on Above the Law then?
Lat: I didn’t really. I’m uncomfortable outing people. I also had journalistic concerns. I only had the story from one source, for example.
I’m not sure why I find [outing people] distasteful. One issue is that there may be a difference between outing a judge and an elected official. People who have outed officials have done so saying it matters because they are voting on legislation that affects gay people….
If I had had half a dozen sources…. Maybe. It’s interesting though. It seems like everyone was waiting for someone else to make the definitive declaration. Even in the San Francisco Chronicle, it’s not clear who their sources are.
How is anyone supposed to know what lies in the recesses of someone’s hearts — or loins – anyway?
Hill: Do you think it was proper of the SF Chronicle to out him, given that they don’t appear to have had more sources than you?
Lat: I wouldn’t say it’s improper. It doesn’t look like they knew that much more [than Queerty or the Petrelis files] but they just decided to go for it.
It’s interesting to see when something crosses over from tabloids to ‘dead tree’ print legitimacy. Like the John Edwards affair — it had been reported by the National Enquirer but was not seen as a legitimate story until it was picked up by the mainstream media.
Hill: You wrote a post at Above the Law after Walker was outed:
Shocking? Not exactly. Judge Walker is a professionally successful white male, with great job security and a six-figure income, who’s in his sixties — and has never been married. A confirmed bachelor, if you will. Who lives in San Francisco. Umm, yeah.
You outlined some possible scenarios as a result of the disclosure of Walker’s sexual orientation:
- Judge Walker, if he is in fact gay, will be predisposed to strike down Proposition 8’s ban on same-sex marriage. His ruling, tainted by bias, will be illegitimate.
- Judge Walker, if he is in fact gay, will “overcompensate” for his sexual orientation and uphold Prop 8. (Note his prior work, back when he was in private practice at Pillsbury Madison & Sutro (now Pillsbury Winthrop), against the Gay Olympics.)
- Even if his orientation won’t affect his ruling, it does create a perception issue. From an ATL commenter: “The judge is gay? That’s a lose-lose situation for the gay marriage people. If he rules it unconstitutional, opponents will say it’s a biased outcome. If he rules it constitutional, opponents will say ‘even a gay judge doesn’t think your position is valid.’”
- Judge Walker’s orientation really doesn’t matter, since nobody thinks this case will be settled at the trial level anyway — it’s going up to the Ninth Circuit, and possibly up to the U.S. Supreme Court.
And you polled our readers about the impact this will have on the case. Almost half said they didn’t think Walker’s sexual orientation would affect his ruling, but that there will be public perception issues. The National Organization for Marriage is lashing out already.
What bigger impact do you think this will have on the discussion about judicial diversity & sexual orientation? There may be two open spots on the Supreme Court soon after all…
Lat: My speculation is that [a gay Supreme Court justice] will happen back-door wise, someone who is closeted.
Our third editor chimed in – T/Ser Elie Mystal: I wonder how many gay Supreme Court justices we’ve had already…
[Off the record gossip about past justices who may have been gay ensued.]
Hill: Is sexuality news-worthy?
Lat: In this case it certainly was. Another judge quoted in the San Francisco piece even said yes to that question, laughing. The strongest arguments for the news-worthiness of a judge’s sexuality are when they’re involved in Prop 8, DOMA [Defense of Marriage Act], or Don’t Ask, Don’t Tell.
But when I interviewed Arthur Leonard [law professor, and an expert on the federal courts and LGBT rights], he pointed out that minorities are the only ones seen as biased:
“[T]here is a tendency to think that only members of minorities are ‘biased’ about cases involving their issues,” said Professor Leonard. “It’s the majority-centric way of seeing things, that assumes that straight white males are, of course, neutral, while everybody else has a point of view. But everybody has a point of view on most issues, and the job for the judge is to separate out his or her personal views from his or her professional role and to strive to take an ‘objective’ approach to deciding the legal issues in the case.”
Lat: It’s not as if minorities are biased and those in the majority aren’t.
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Definitely an interesting discussion and I had the same thought your colleague did. this news will really amplify the smugness or outrage when the ruling comes down.
Professor Leonard makes an important point: Judge Walker’s sexual orientation does not affect his position on the constitutionality of Prop 8 any more than the sexuality of a heterosexual judge would. No matter who writes the decision, that individual will fall somewhere on the sexual orientation spectrum and have some quoteunquote stake in the outcome. The zealousness on both sides of the issue demonstrates that the white, heterosexual male position is not a value-neutral stance. It is only one in a sea of opinions.
Also, it seems silly to view the judge’s decision as a simple binary choice: pro-gay/anti-gay. Luckily, I suspect that he will fluff out his opinion with actual legal reasoning and relevant case law. And then, as the article pointed out, the appellate process begins. Weeeee!
I’d be less concerned about bias than the possibility of overcompensating for it. Lat says lose-lose, I’d suggest that much of life is lose-more vs. lose-less, and killing Prop 8 in and of itself is better than leaving it stand.
That any no-fault divorce state would ban any type of marriage seems absurd.
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