February 7, 2010
by Brian Leubitz
In today’s San Francisco Chronicle, the Matier and Ross column “outs” Judge Vaughn Walker:
The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay. (SF Chronicle)
For those in the San Francisco legal community, this isn’t really much of a surprise at all. It’s not that Vaughn Walker is closeted, more that he just doesn’t talk about it in the way that Antonin Scalia doesn’t talk about his sexuality. In 2010, we can, and should, be allowed to pursue whatever relationships, sexual or otherwise, without somebody discussing it as some sort of tawdriness.
This will most certainly make headlines in the right-wing media. The news hadn’t really filtered over there very much, so for many this will be the first time to hear about it. But state Senator Mark Leno (D-SF) makes an excellent point:
State Sen. Mark Leno, D-San Francisco, who has sponsored two bills to authorize same-sex marriage that were vetoed by Gov. Arnold Schwarzenegger, said that as far as he’s concerned, Walker’s background is a nonissue. “It seems curious to me,” he said, that when the state Supreme Court heard a challenge to Prop. 8, the justices’ sexual orientation “was never discussed.”(SF Chronicle)
Taking it that one step further, we all have a background. We all have some mix of racial, geographical, socioeconomic and other backgrounds. And they are all mixed up with who we are. We can’t take those labels off no matter how independent or fair you are. Yet some will still see this as sort of bias.
So, did anybody comment about Justice Alito’s gender when he wrote the outrageous opinion in Ledbetter v Goodyear Tire that said that under the Civil Rights Act women could not sue after 180 days from the discriminatory decision, even if they didn’t know about the decision for years? The decision that ultimately spurred the passage of the Lilly Ledbetter Act because it was so egregious.
The fact is that we can never separate ourselves from our identities. Judge Walker was randomly assigned this case, and has been reasonable througout. But that won’t stop Andy Pugno from questioning Walker in as sly of a way as he can think of:
“We are not going to say anything about that,” Pugno said.
He was quick to assert, however, that Prop. 8 backers haven’t gotten a fair shake from Walker in court. He cited both the judge’s order for the campaign to turn over thousands of pages of internal memos to the other side and Walker’s decision to allow the trial to be broadcast – both of which were overturned by higher courts.
“In many ways, the sponsors of Prop. 8 have been put at significant disadvantage throughout the case,” Pugno said. “Regardless of the reason for it.”(SF Chronicle)
Why were they at significant disadvantage? Oh right, because their “witnesses” were so excited to testify and so confident that they didn’t want their faces to be shown. And because the campaign team wanted to hide the lengths that they went to exploit the fear and biases of the 2008 electorate. When it comes down to it, their weakness was their case. Prop 8 creates 2 distinct classes of people, and whether that happens in this case or down the road, ultimately that will be seen as a clear violation of the Constitution.