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Judge Who Struck Down California’s Prop. 8 Gay Marriage Ban Speaks Out

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by Publius
Posted February 19, 2013, 9:39 AM

The San Francisco Mercury reports:

 

On a May day in 2009, Vaughn Walker was going through one of his weekly routines as a federal judge, reviewing a stack of new lawsuits assigned to his San Francisco chambers, when one case caught his eye: Perry v. Schwarzenegger. . . .

But it did not take long for the veteran chief judge, himself quietly but openly in a longtime gay relationship with a doctor, to realize that he had inherited the legal challenge to Proposition 8, California's ban on same-sex marriage. The silver-haired judge with the iconoclast's reputation would be center stage in the gay marriage controversy.

"That's when I had the —'Oh (my)' moment," Walker told this newspaper during an interview last week, recalling that he was already mulling retirement when the lawsuit landed on his desk. . . .

Walker wasn't always so sure the Proposition 8 case would reach the Supreme Court, although he prepared from the outset for that possibility. He notes that the gay marriage debate was at a different juncture in 2009 -- few states had legalized same-sex marriage (nine do now), and President Barack Obama was still several years away from backing same-sex marriage rights in the courts.

"It was a different time, and the Supreme Court doesn't always get out in front of public opinion," Walker said. "Not that many cases go to the Supreme Court."

Over the objections of Proposition 8 backers, Walker ordered a full trial to establish a complete record on the arguments from both sides, aware the higher courts would review whatever he decided. "If you are going to have an issue that deals with a significant constitutional matter, it pays to have some facts that are established the old-fashioned way," he said.

But, to Walker's surprise, after lawyers for same-sex couples put on a parade of witnesses, gay marriage foes put on scant evidence, offering just two witnesses, including one who later came out in favor of same-sex marriage rights. "I did think the proponents of Proposition 8 would put on a case," Walker said.

"It never occurred to me that they would ... ," and his trademark baritone trails off. Walker asks for the correct baseball term for taking a swing and a miss at a pitch and then just shrugs.

Walker is matter-of-fact about the eventual fallout from declaring Proposition 8 unconstitutional. As he told the Commonwealth Club recently, he believes same-sex marriage is "an idea whose time has come," and he sticks by that belief.

But for his view, Walker has faced withering criticism from conservative and religious foes of same-sex marriage who attacked his fairness in deciding the case while in a long-term same-sex relationship. Even though Walker notes that his sexual orientation had been an open secret in the Bay Area legal world for about a decade before the Proposition 8 case, he was not entirely surprised when the issue surfaced.

"At the outset of the case, I wondered whether my personal situation would become an issue," he said.

Proposition 8 lawyers tried, unsuccessfully, to set aside Walker's ruling, arguing the judge was biased and should have disclosed the relationship before trial. Walker makes no apologies for that decision, saying it would be a dangerous precedent for all federal judges. The bias argument, he adds, was the Proposition 8 team's "Hail Mary." . . .

In July 2011, Engage: The Journal the Federalist Society's Practice Groups, published an article on the Proposition 8 case, including issues of standing, titled "Perry v. Schwarzenegger: Is Traditional Marriage Unconstitutional?" The author is George W. Dent, who is Schott-van den Eynden Professor at Case Western Reserve University School of Law. You can read the essay here.

 

 

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