A Judicial Outing?

Revelation that the Proposition 8 trial judge is gay leads marriage equality foes to claim there's bias on the bench

The judge hearing a trial over whether Proposition 8 in California is constitutional ”is himself gay,” according to a column that ran in this past Sunday’s San Francisco Chronicle.

Chronicle columnists Phillip Matier and Andrew Ross wrote that U.S. District Court Judge Vaughn Walker’s sexual orientation was the ”biggest open secret in the landmark trial.”

Is this outing? The views on whether it is or is not are, well, are as plentiful as the colors of the rainbow.

Is this newsworthy? As a fellow judge and friend of Walker’s reportedly told the Chronicle, while laughing, ”Yes.” Although some have suggested otherwise, the judge wasn’t alone.

Will the revelation matter? It’s not yet clear what impact Sunday’s column will have on the trial, where closing arguments remain to be heard by Walker.

Dan Levine, a journalist working for The Reporter, a California legal newspaper, reported on the trial for The Reporter and through regular updates via Twitter. When asked on Sunday if he had been aware of the rumors that the judge is gay, he replied ”[Q]uick answer: yes, I had heard this for quite a while, and I asked Walker directly during the trial. He no commented.”

Levine noted that ”while it is newsworthy, our paper’s policy is to balance that against an individual’s privacy, and in this case, our analysis was not to print.”

Michael Triplett, a board member of the National Lesbian & Gay Journalists Association, said in an interview on Thursday that The Reporter‘s weighing of the news value versus the privacy of the judge was the usual balancing that goes on with most mainstream media – and even some more established LGBT media – when considering whether to publish such information.

As for the decision by The Reporter not to go forward with any story about Judge Walker’s sexual orientation, Triplett said, ”I’m not sure they were wrong about it, because it is a balancing question.”

Some – including the Bay Area Reporter – called the Chronicle‘s reporting an ”outing.” In a blog post on Sunday, they headlined their post, ”Chronicle columnists out Prop 8 trial judge.”

As Michelangelo Signorile, a longtime proponent of publicizing the sexual orientation of public figures when relevant, noted, ”I never accepted word ‘outing’ but this would be so according to media def[inition].”

Debra Saunders, another columnist at the Chronicle, disagreed, writing on Tuesday, ”It would be wrong to accuse The Chronicle of ‘outing’ Walker when he already was out.”

Triplett said, ”We’re facing this more and more with people who are living openly gay lives, but not through a press release.” He continued, ”How do you prove that it’s true? Journalists just have a hard time figuring out, ‘So, when do you run with it?”’

The potential story about Walker’s sexual orientation was not treated all that differently by LGBT journalists and legal observers – aside from insinuations made by Michael Petrelis at his blog, The Petrelis Files, and (relying on Petrelis’s reporting) on the Queerty blog. Neither site, however, asserted that Walker actually is gay prior to the Chronicle column. Nor did any of the reporters covering the trial for more traditional LGBT publications.

After the Chronicle column ran, however, none less than Georgetown Law Professor Nan Hunter noted at her Hunter of Justice blog, ”Many California lawyers have told me of rumors that Judge Vaughn Walker . . . is gay, but so discreet that there was no substantiation of it.”

Ann Rostow, at the San Francisco Bay Times, went further, noting that she was aware that Walker is gay, then adding, ”It would have been a significant detail to pass along, so again, I’m wondering why I danced around it. I just can’t say.”

After talking about some possible reasons, she concluded, ”Anyway, I feel strangely unprofessional because you can bet I wouldn’t have hesitated to dish the dirt on (opposing counsel) Charles Cooper if, let’s say, he had been married and divorced three times.”

The reluctance of the LGBT media – including most online publications – to talk about Walker’s sexual orientation, Triplett said, comes down to a ”concern . . . that if this comes out, it could hurt the case.” He also noted that, as Rostow suggested, ”What we’re more than willing to report about our enemies, we’re not willing to do to our friends.”

As it turns out, the reverse also is true. Supporters of Proposition 8 quickly stepped up to ”dish the dirt” on Walker.

Ed Whelan, at National Review‘s The Corner, wrote – while disclaiming a concern with the judge’s sexual orientation – that ”Walker’s entire course of conduct has only one sensible explanation: that Walker is hellbent to use the case to advance the cause of same-sex marriage.” Calling judicial decisions about documents at issue in the trial and the attempt to publicize the trial evidence of a ”manifest inability to be impartial,” Whelan called on Walker to recuse himself from the trial.

Matt Barber, of the Liberty Counsel, released a statement about the Chronicle report, noting, ”At every turn he’s displayed extreme bias in favor of his similarly situated homosexual activist plaintiffs.”

Barber went on, ”This is no different than having an avid gun collector preside over a Second Amendment case,” a scenario that could and likely does happen often – and without any violation of the judicial rules of conduct.

And, unsurprisingly, Brian Brown at the National Organization for Marriage added in his view, calling Walker ”far more akin to an activist than a neutral referee.”

The response from mainstream editorials and columnists has just begun – and suggests a mixture of views on Walker’s continued oversight of the trial.

Although the San Francisco Chronicle itself has editorialized that ”A judge’s sexual orientation does not inherently shade his ability to read and interpret the U.S. Constitution with clear-eyed wisdom,” Ruth Marcus at The Washington Post wrote a column far more sympathetic to the views of those calling for Walker’s recusal.

Although she concluded that she wanted him to rule in favor of the Proposition 8 opponents and thought he should not recuse himself, she added, ”If I were on the side supporting the ban and found it struck down by a supposedly gay judge, I’d have some questions about whether the judicial deck had been stacked from the start.”

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