In August 2010, federal judge Vaughn R. Walker, then chief judge of the U.S. District Court for the Northern District of California, issued a 138-page opinion in the case of Perry v. Schwarzenegger, finding that California’s Proposition 8, banning same-sex marriages, was unconstitutional. Supporters of Prop 8 have appealed to the U.S. Court of Appeals for the 9th Circuit. The Court of Appeals, quite possibly followed by the U.S. Supreme Court, would in the ordinary course of events decide whether Judge Walker was correct or incorrect in his reading of the Constitution.
But the Prop 8 supporters then tried a maneuver to avoid an actual decision on the constitutional merits of the case and start it all over from the beginning. On April 25, 2011, the supporters filed a motion in the District Court to vacate Judge Walker’s decision and have him found disqualified – or recused – from deciding the case. The ground? That Judge Walker is himself gay and in a long-term relationship with another man. If granted, the motion would move the case back to square one. A new judge would be assigned. Presumably every one of Judge Walker’s pretrial orders would need to be reconsidered and then a new trial held, followed by a new decision.
The recusal request should be denied. And it is hard to see the request as other than a desperate litigation tactic, through a reprehensible appeal to prejudice against gay people. To begin with, this is a stunning change in tactics by the Prop 8 supporters. The fact that Judge Walker is gay was widely known and even reported in the press at the time of the trial; he did not advertise the facts of his personal life but made no secret of them either. The press also reported that he appeared at social events with a male companion, a physician. Yet the Prop 8 proponents did not ask him to recuse himself at any time before he issued his decision – not in pretrial proceedings, not during trial, and not before he issued his post-trial decision. On the contrary, they directly said that did not want him recused. That really should be the end of it; and their stunning turn-around suggests that their move is all about tactics and not any real concern about a possibility that Judge Walker was prejudiced.
But forget that point for a moment. What are the Prop 8 supporters actually saying made Judge Walker unfit? It comes down to this, that because he is gay and was in a long-term relationship, he stood to gain if he and his companion themselves wanted to marry. But why, on similar reasoning, wouldn’t any married heterosexual judge – or any judge in a long-term heterosexual relationship – be equally compelled to recuse him or herself? After all, the central assertion in support of Prop 8 was that to allow same-sex marriage would in some way inflict grievous harm on the institution of heterosexual marriage. Whether there was any actual basis for that assertion was a central issue in the case. And wouldn’t an African-American judge be disqualified from deciding a racial bias case because the judge could incidentally benefit? And shouldn’t a judge of another race also be disqualified because of the possibility that a ruling in favor of an African-American somehow at least indirectly would disadvantage members of other races? So can no one decide cases claiming discrimination – because the judge will inevitably, even if indirectly, be on one side or other of the case? Those who now argue for recusal twist themselves up with all kinds of pretzel logic to try avoid these and other counter-arguments and to say they aren't just appealing to anti-gay bias.
J. Matt Barber, Associate Dean of the Liberty University law school, is more blunt and, I suspect, just more candid in a piece he wrote for the website RenewAmerica. The caption says it all: "If the judge ain't straight, you must vacate." So Dean Barber concedes that it is all about Judge Walker being gay after all. Dean Barber offers little actual reasoned argument but compensates with the level of his stridency. And he directs his stridency mostly against the merits of Judge Walker's ruling, which can of course be reviewed in the ordinary manner on appeal. As Barber apparently sees it, only a judge who was himself "a practitioner of the homosexual lifestyle," to use Barber's phrase, possibly could have made such a ruling. So. as a gay man, he never should have been allowed to decide the case. And there you have it.