Issue:  Vol. 48 / No. 7 / 15 February 2018

Breaking: Prop 8 judge questions if Supreme Court will take case


Retired federal Judge Vaughn Walker spoke about the federal Proposition 8 case at the Commonwealth Club. (Photo: Jane Philomen Cleland)

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The federal district judge who found California's ban against same-sex marriage unconstitutional questioned if the U.S. Supreme Court would take up the case during a talk in San Francisco Thursday afternoon.

Vaughn Walker, the now-retired chief judge of the U.S. District Court for the Northern District of California, told a Commonwealth Club audience April 19 that there is reason to believe the case will end in the 9th Circuit Court of Appeals, where it is currently on appeal.

"There is some question if the Prop 8 case will go to the United States Supreme Court," said Walker, who oversaw the Prop 8 trial and issued his ruling striking down the antigay ballot measure in 2010. "Because of the narrow grounds the 9th Circuit ruled on, they could turn down that case."

When Walker issued his decision in what is known as Perry v. Brown, he not only ruled that voters who enacted the measure in 2008 were in violation of the due process and equal protection clauses in the U.S. Constitution, he also found that gays and lesbians had a constitutionally guaranteed right to marry.

But a three-judge panel for the 9th Circuit did not reach the same far-sweeping conclusion in its 2-1 decision released in February. While they agreed with Walker that the passage of Prop 8 violated the equal protection clause, the appellate majority said the question of same-sex marriage being a protected right would have to wait for another case, and likely another court, to decide.

An East Coast appellate court is currently reviewing just such litigation that seeks to strike down DOMA, the Defense of Marriage Act that restricts federal recognition of same-sex marriages. It is expected the three conjoined cases, known as Gill v. Office of Personnel Management, will be taken up by the U.S. Supreme Court, possibly as soon as next year.

No matter when a DOMA case reaches it, the Supreme Court ruling on same-sex marriage is inevitable, said Walker.

"There seems to be no way in the world it can avoid the federal DOMA," he said. "It will be decided one way or another. It does seem to me the notion of people deciding to get married without regard to gender is an idea whose time has come and is ever more accepted."

In terms of the Perry case, backers of Prop 8 have requested what is known as an en banc review of the appellate panel's ruling, where 11 judges from the 9th Circuit would be randomly picked to determine if the decision should stand. If en banc is granted and the decision is found to be valid, then it would only apply to California where same-sex marriages could resume.

The decision would also impact the other states covered by the 9th Circuit as voters in those states could not undue same-sex marriage laws at the ballot box. Both of the lower court rulings have been stayed while the legal wrangling over the case continues.

Because the appellate court tempered the reach of its opinion in Perry, it is for that reason that the Supreme Court "could reasonably not review the Prop 8 case," said Walker.

He also derided the nation's highest court for its refusal to allow the three-week Prop 8 trial to be televised. Walker had granted permission for video of the daily court proceedings to be shown on evening newscasts, but Prop 8's backers sought to quash such transmissions and convinced the U.S. Supreme Court to intervene.

Walker said he disagreed with the high court's "refusal to allow cameras in our courtrooms" because having legal proceedings televised would help educate the public. He added that he "would urge" the Supreme Court to televise its own proceedings.



The first question moderator UC Hastings law professor Peter Keane asked Walker following his prepared speech related to the outcome of not having the Prop 8 trial televised.

Dustin Lance Black, who won an Oscar for his screenplay on the life of slain gay San Francisco Supervisor Harvey Milk, condensed the Prop 8 proceedings into a play. The nonprofit foundation that brought the Perry case recently staged a production in Los Angeles as a fundraiser, and Brad Pitt played Walker's role.

Someone in the audience, said Keane, wanted to know Walker's reaction to the casting.

"I could have thought of plenty of people I would not want playing me," quipped Walker, 68, who returned to private practice last year focusing on arbitration and mediation services.

He then expounded on how the play had come about, calling it an "unintended outcome of the U.S Supreme Court decision" not to allow the trial tapes to be broadcast.

"The irony," suggested Walker, is that because of that ruling and Black's play, "far more people saw that than the people who sat through the trial itself ... Brad Pitt was an unintended beneficiary of the U.S. Supreme Court ruling."

In response to other audience questions, Walker said he "didn't anticipate" his being closeted as a gay man while on the federal bench would be a problem or become an issue during the Prop 8 proceedings.

Not only did the lawyers defending the anti-gay law repeatedly say they would not bring up the issue in court, Walker believed his sexual orientation was widely known anyway. Following the trial but prior to his issuing his opinion, Walker obliquely admitted to being gay through a friend in a San Francisco Chronicle story that did not quote the person by name.

"The word was out. It had been publicly discussed in a number of places," said Walker, who only publicly discussed his being gay after he left the federal bench last year. "I figured it was not going to be an issue."

He recalled when he successfully defended the U.S. Olympic Committee in its pursuit to have organizers of the Gay Olympics change the event's name, critics contended he had agreed to take the case because "I was trying to cover up my own sexuality."

Walker said he knew that at "some point" in his judicial career he "would have to deal with" his sexual orientation "in some fashion." Nonetheless, he was surprised to see Prop 8's lawyers reverse course and argue before the 9th Circuit that he should have recused himself from hearing the case since he is gay and has a long-term partner.

The appellate panel unanimously rejected such arguments, and Walker called the questioning of any judge's "innate characteristics," whether it be their race, gender or sexual orientation, "a very dangerous road to go down."

During his prepared remarks Walker gave a shout out to Dale Carpenter, a gay law professor who wrote a controversial book claiming that the Lawrence v. Texas case that struck down the nation's sodomy laws did not involve any actual sex. Based on interviews with the two gay defendants, responding officers, and a review of legal documents, Dale concluded that the claims of the pair being caught having anal sex were fabricated.

Carpenter will be speaking at a Commonwealth Club event Thursday evening, and Walker not only noted the talk but also called Flagrant Conduct "a very interesting book."

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