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Questions about the judge should not derail a gay-marriage ruling

By Editorial,

RUMORS ABOUT Chief Judge Vaughn R. Walker’s sexual orientation began in 2009, soon after he was assigned to hear the constitutional challenge to Proposition 8, the California amendment that limits marriage to one man and one woman.

Judge Walker, who retired in February from his seat on the U.S. District Court for the Northern District of California, ultimately found Prop 8 unconstitutional, paving the way for same-sex couples to marry. Although he had declined to speak publicly about his sexual orientation throughout the course of the case, he acknowledged on April 6 that he has been in a same-sex relationship for the past 10 years.

Supporters of Prop 8 argue that Judge Walker had “a duty to disclose not only the facts concerning his relationship, but also his marriage intentions” to ensure that he was not presiding over a case in which he had a “clear and direct stake in the outcome.” Last week they asked Chief Judge James Ware, who took over the Prop 8 case after Judge Walker’s retirement, to throw out Judge Walker’s opinion and try the case anew. Judge Ware should deny this extreme request.

Judges have an obligation under law and ethics canons to disclose information that could reasonably give rise to questions about their impartiality — even if the judge believes that the concerns are unfounded. Judges also have a duty to step down from cases in which their “interests could be substantially affected by the outcome of the proceeding.”

Although these are meant to be objective standards, subjectivity inevitably plays a role. Judge Walker, for example, clearly believed that his sexual orientation and his long-term relationship were irrelevant to whether he could handle the case impartially. He told reporters April 6 that he never considered recusing himself: “If you thought a judge’s sexuality, ethnicity, national origin [or] gender would prevent the judge from handling a case, that’s a very slippery slope. I don’t think it’s relevant.”

Judge Walker is right, of course. In the vast majority of cases, judges of all backgrounds put aside their personal beliefs and preferences to render decisions based only on fact and law. But this case is different, not because of Judge Walker’s sexual orientation but because he and his partner potentially could have benefited from a decision striking down Prop 8. In the best interests of justice and transparency, Judge Walker should have disclosed his relationship at the outset, thereby giving the parties an opportunity to file a motion for recusal — which he could have denied — or to proceed without objection.

Vacating a judgment, however, is an extraordinary remedy, and courts have in many instances declined to throw out a judgment even after concluding that a judge should have disqualified himself. It is not called for here. The California-based federal appeals court is already reviewing this decision — and it should uphold it.

In arguing for tossing the judgment, Prop 8 supporters claim that Judge Walker made several decisions that raise suspicions of bias, including his finding that same-sex couples have a constitutional right to marry. But these are disagreements over substantive questions of law and there is no proof that Judge Walker reached these conclusions based on anything other than a good-faith interpretation of the law. His exhaustive and thorough decision striking down Prop 8 was built on a mountain of evidence substantiating the social, political, psychological and economic benefits of allowing same-sex partners to marry.

Prop 8 supporters, on the other hand, put on an exceedingly weak case, with a paucity of evidence, a short slate of often erratic witnesses and an unconvincing legal case. It is difficult to imagine any judge — gay or straight — coming to a different conclusion.

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