Two weeks ago, former federal district judge Vaughn Walker, who ruled last summer in Perry v. Schwarzenegger that California’s Proposition 8 is unconstitutional, publicly disclosed for the first time that he has been in a same-sex relationship for the past ten years. A straightforward application of the judicial ethics rules compels the conclusion that Walker should have recused himself from taking part in the Perry case. Further, under well-established Supreme Court precedent, the remedy of vacating Walker’s judgment is timely and necessary.
Let’s begin with the relevant facts that bear on the recusal question.
According to his recent disclosure, Walker has been in a relationship with the same man for the past ten years. Walker and his partner evidently live in the San Francisco area.
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The complaint in Perry, filed in May 2009,sought a permanent injunction against “all enforcement of Prop. 8.” Among other things, the plaintiffs alleged that the “inability to marry denies gay and lesbian individuals and their children the personal and public affirmation that accompanies marriage.” They further alleged that they, as “gay and lesbian residents of California who are involved in long-term serious relationships with individuals of the same sex and desire to marry those individuals,” had suffered “significant hardship” from Proposition 8, “including but not limited to the deprivation of rights guaranteed by the Fourteenth Amendment and severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma.”
In August 2010, Judge Walker ruled that Proposition 8 “is unconstitutional under both the Due Process and Equal Protection Clauses,” and he ordered “entry of judgment permanently enjoining its enforcement [and] prohibiting the official defendants” — including California’s governor, attorney general, and the state officials “responsible for prescribing and furnishing the forms for marriage license applications, the certificate of registry of marriage, including the license to marry, and the marriage certificate” — “from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.”
Among the findings of fact that Walker offered in support of his ruling were that “Proposition 8 increases costs and decreases wealth for same-sex couples,” that marriage “benefits both spouses by promoting physical and psychological health,” that “marriage is widely regarded as the definitive expression of love and commitment in the United States,” and that “Proposition 8 places the force of law behind stigmas against gays and lesbians.”
Now let’s consider how those facts apply under federal recusal law:
Section 455(a) of Title 28 of the United States Code requires that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” As explained by a publication of the Federal Judicial Center, Judicial Disqualification: An Analysis of Federal Law (2d ed. 2010), section 455(a) makes “clear that judges should apply an objective standard in determining whether to disqualify”:
A judge contemplating disqualification under § 455(a), then, should not ask whether he or she believes he or she is capable of impartially presiding over the case. Rather, the question is whether a judge’s impartiality might be questioned from the perspective of a reasonable person, and every circuit has adopted some version of the ‘reasonable person’ standard to answer this question.
In adopting this objective standard, section 455(a) “obviates making subjective judgment calls about what is actually going on inside a judge’s heart and mind.”
Let me start off be saying I disagree with Judge Waker's decision (although I am not hostile to the idea of gay marriage), but I am not sure I am buying your argument. Lets pretend for a moment that this case went the other way, and it turned out that Walker was a traditionally married devout Catholic and belonged to a church whose priest at one point mentioned that gay marriage was a threat to traditional marriage in one of his Sunday morning services, would you be writing the column questioning his ethics? (I know, I know, I would have to look at Mother Jones or the Nation to find someone calling his ethics into question, but I would like to see some consistency.)
That's like saying a judge in the Loving v. Virginia case would have to disqualify himself because he had dated someone of a different race. This article is ridiculous.
I’ve read the Walker’s opinion and it is an egregious example of judicial activism. That being said, it’s not a great idea to disqualify judges based on their personal relationship status. By your logic, judges who were in committed hetero[s]exual relationships would need to recuse themselves from same [s]ex marriage cases!
Walker clearly had a special interest in the outcome of this case and, as this piece clearly points out, should have recused himself. He is completely biased and his ruling should indeed be vacated, now.
This is a very weak article. If the ruling was wrong then it will be sorted out on appeal. Unfortunately, the Prop 8 people could not make a compelling case at all; lacking any credible witnesses.
Furthermore, if Scalia and Thomas don't have to recuse themselves for all their financial/personal relationship ethics issues, then I don't see Judge Walker as an issue either.
According to the judge's *own words*, he stands to obtain benefits he otherwise would not obtain. All he has to do is rule one way and redefine "marriage" in order to (as he has it) accrue material interest to himself.
"judges who were in committed hetero[s]exual relationships would need to recuse themselves from same [s]ex marriage cases!"
Actually, according to the "logic" of gay marriage proponents, gay marriages should have no effect on marriage. So you can't be biased against a position that "can't" effect you (as argued by gay activists).
The issue here is disclosure. By not disclosing a unique position on the court in a case where personal interest is easily shown (if not proven) Walker was not acting as any impartial judge, who seeks "justice", would. He had an opportunity to explain why he wasn't self-interested. A judge with integrity and sound reasoning on their side would INVITE such scrutiny to insure the process and judgement would be beyond reproach.
Walker clearly had no interest in preserving the integrity of this court or the judicial process. That means he treasured a particular outcome over his role as a jurist. Not only should the judgement be vacated, he should be sanctioned (if not impeached) for such obviously egregious behavior.
"I fully expect to read about a 2007 trip to the Iowa State Fair where I was driven around in the back of a stretch Hummer with tinted windows while sporting mirrored sunglasses and a Moammar Qaddafi cape, and being fed grapes by a nubile campaign volunteer."
I think you meant “voluptuous blonde Ukrainian nurse.”
This judge will be doing a tearful interview with Katie or Diane in the near future discussing the lifetime of persecution he has had to take for his choice or excuse me, the way he was born. Sad.
Lastly, this judge is just another example of why lifetime appointment for federal judgeships should be changed. 25 years maximum on all levels of Federal bench including Supreme Court.
You folks are missing the point of the article. It's not that the judge is gay and should have recused himself. He should have disclosed the fact he was gay and in a relationship so there could have been a determination of whether or not he could be impartial. He did not, hiding these facts which now calls into question his impartiality and ethics as a judge
By your logic a Christian would have to recuse himself from anything impacting public morality... homosexuality, public prayer, religious expression, public display of religious slogans, abortion, Planned Parenthood, birth control (in some cases), divorce, family law, adoptions, etc. etc. etc. It would be a nightmare.
All you'd have to do is find a quote in the Bible to show that the Judge has a personal bias and stands to benefit from living in a more Christian nation, that Christian's are directed to spread their faith, etc. You could even argue he believes he will be rewarded a thousandfold in Heaven.
Those arguments are not likely accurate but your train of reasoning leaves open the possibility that they'd be used. Despite what you say, that slippery slope is slippery indeed.
I invite those who resist my conclusion to identify what additional facts, if any, would alter their assessment. I also invite those who dispute the principle I set forth to test their political biases by hypothesizing an analogous situation in which they would disfavor (or would be neutral on) recognition of a constitutional right. Imagine, for example, that a federal judge was living in a polygamous household with three women in State X, that he was not married to any of them, and that he wanted to be married to all three simultaneously. Would it be proper for this judge to preside over a lawsuit challenging the anti-polygamy laws of State X as violative of the federal Constitution?
(And, no, I am not equating same-sex marriage with polygamy.)
Judging from Mr. Whelan's response it appears that he has been experiencing the wrath of same-sex activists for his courageous and accurate testimony to Congress last week.
Same-sex enthusiasts lack credible historical evidence to support their ridiculous assertions, so they band together to kill the messenger in the hopes that the message will disappear.
@tflavin,
As far as I know a judge cannot be a plantiff and a judge in the same case. By your logic, if the judge was being tried for armed robbery, he would be able to serve as the presiding judge as well.
A judge must recuse himself in a case if he, as an individual, can benefit by his own ruling. In this case, the judge obviously benefitted. He was both judge and plantiff. As far as I can tell, he should be dismissed from his position by the Senate and disbarred for mis-conduct.
Even though I think the opinion was overreaching, I have a hard time agreeing that any gay judge should recuse himself on gay-related issues. Should a black judge recuse himself on a case where a black plaintiff charged state racism? Or a white or Asian judge on an affirmative-action college admissions case?
To say that these judges should recuse themselves (that is, even before hearing the evidence or issuing a ruling) is to assume that someone of a particular race or orientation is so inherently incapable of rendering an impartial decision that we won't even give them the opportunity to make the right judgements.
Rather, the appropriate screening for bias is the appellate process; if a decision lacks sound legal reasoning, whether a result of bias or otherwise, it can be reversed on appeal. And at that stage, we don't need to speculate whether bias from their race or orientation was the reason for that faulty legal reasoning, we can simply address the reasoning itself, as it is specified in concrete form in the opinion.
PS. NRO needs to fix or get rid of their automated comment filter (it's being moderated manually anyway). I tried to write s*xual orientation and it blocked it.
"It’s time to vacate Walker’s Prop 8 ruling and put a fitting end to his rampant course of misconduct."
And just how, Mr. Whelan, do you propose this ruling be vacated, or, is this more mindless twaddle that passes for intellectual discourse in conservative circles?
BTW, do you think that the captcha comment "lickety-split" that I had to enter into the textbox is a coincidence with regard to this article?
Look in any dictionary (except for the ones that they're rewriting right now) and you'll see that marriage is defined as the union of a man and a woman. Case closed. It doesn't apply to same-sex couples, and trying to redefine it to do so is like trying to redefine a horse to say that it's a cow.
I don't support gay marriage but commentary like this is the reason why gay marriage proponents are able to (wrongly) cast us all as homophobic bigots so easily. To say that a judge can't hear a case of alleged discrimination because he or she belongs to the same group as the plaintiffs is utterly ridiculous and short-sided. I don't recall seeing you say that all the white Supreme Court Justices should recuse themselves from Ricci vs. DeStefano where they overturned Sotomayor's ridiculous decision that white firefighters couldn't sue for discrimination.
