Major Vulnerability in Same Sex Marriage Ruling

Vaughn R. Walker

It seems that Judge Vaughn Walker’s ruling in Perry v. Schwartzenegger striking down the State of California’s Proposition 8 ballot initiative which prohibited state recognition of Same Sex Marriage is highly vulnerable to being overturned on the grounds that the judge ought to have recused himself. John C. Eastman explains in the same San Francisco Chronicle which last February was assuring readers that Judge Walker’s personal sexual orientation was a “non-issue.”

Judge Vaughn Walker’s Proposition 8 decision last week has thrust his personal life into the limelight. The San Francisco Chronicle has reported that the fact that Judge Walker “is himself gay” is the “biggest open secret” in town. The BuzzTab blog calls him “the apple of gay advocators eyes.” The Los Angeles Times reported just last month, after the conclusion of closing arguments in the case, that he is “openly gay” and “attends bar functions with a companion, a physician.”

Is any of this relevant to Judge Walker’s ruling striking down Proposition 8?

Well, as University of Notre Dame law Professor Gerard Bradley recently noted, the mere fact that Judge Walker may be homosexual would not necessarily have required recusal. But the fact that he “attends bar functions with a companion, a physician,” and may therefore be in a stable homosexual relationship of the kind that could lead to marriage, is an entirely different matter.

The political philosopher John Locke noted in his Second Treatise on Civil Government that “it is unreasonable for men to be judges in their own cases (because) self-love will make men partial to themselves and their friends.” That sentiment, undoubtedly true, is actually codified in federal law. A judge is required to disqualify himself in any proceeding “in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which: (a) the judge has … personal knowledge of disputed evidentiary facts concerning the proceeding; [or] … (c) the judge knows that the judge … has a financial … or any other interest that could be affected substantially by the outcome of the proceeding.”

If Judge Walker is indeed in a long-term, same-sex relationship, he certainly has an “interest that could be affected substantially by the outcome of the proceeding” – he and his partner are now permitted to marry! – and that, according to Judge Walker’s own finding, has financial benefits as well. Such conflicts would have required recusal, and cannot be waived by the parties.