Judge Vaughn Walker San Francisco Chronicle photo by Paul Chin

Chief US District Court Judge Vaughn Walker, who is hearing the Perry v. Schwarzenegger (Prop 8) case in San Francisco, is gay. San Francisco Chronicle columnists Phillip Matier and Andrew Ross publicly revealed that in a Sunday column. But they weren’t exactly “outing” the judge. They write that it has been “the biggest open secret in the landmark trial”.

They write:

Many gay politicians in San Francisco and lawyers who have had dealings with Walker say the 65-year-old jurist, appointed to the bench by President George H.W. Bush in 1989, has never taken pains to disguise - or advertise - his orientation.

They also don't believe it will influence how he rules on the case he’s now hearing - whether Proposition 8, the 2008 ballot measure approved by state voters to ban same-sex marriage, unconstitutionally discriminates against gays and lesbians.

Brian Leubitz writes in the Courage Campaign’s Prop 8 Trial Tracker:

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.

Walker replied only “No comment” when asked by the Chronicle columnists if he had any concerns about being characterized as gay in the paper.

But shortly after Metier and Ross talked to Walker, another judge who said he is a friend of Walker’s called them to say that Walker is not trying to “conceal his sexuality”:

The trail: Not that it matters, but Prop 8 judge is gay [contd.]

“He has a private life and he doesn’t conceal it, but doesn’t think it is relevant to his decisions in any case, and he doesn’t bring it to bear in any decisions,” said the judge, who asked not to be identified because of the sensitive nature of the Prop. 8 trial.

“Is it newsworthy?” he said of Walker's orientation, and laughed. “Yes.”

The paper’s decision to print what had been whispered has generated criticism. At the magazine’s blog the New Yorker’s Margaret Talbot writes, “[I]t’s hard to imagine that a 65-year-old gay man hasn’t thought about questions like whether homosexuality is innate—and hasn’t thought about them more deeply and empathetically than most 65-year-old heterosexual men.”

Another Chronicle columnist also suggests that the appearance of a conflict should have prompted Walker to recuse himself from the case.

But Debra J. Saunders—a generally conservative columnist—also defended the decision of her paper to print the column in her Monday column in the Chronicle:

To some readers, the decision to run, or not to run, a story about a judge’s private life might seem cut and dried. It is not.

Editors, reporters and columnists have to juggle privacy with the public's right to know. (It would be wrong to accuse The Chronicle of “outing” Walker when he already was out.) …

The problem is that where there may not be a conflict of interest, there may be the appearance of conflict - and that matters, too.

But that “appearance” of conflict is a sign of what New York Law School professor Arthur S Leonard calls a “majority-centric” viewpoint.

Leornard blogs about legal and other issues at his blog Leonard Link and writes about the LGBT legal issues for New York’s Gay City News.

The blog Above the Law asked Leonard about charges that Walker might be biased. Leornard responded:

“[T]here is a tendency to think that only members of minorities are ‘biased’ about cases involving their issues,” said Professor Leonard. “It’s the majority-centric way of seeing things, that assumes that straight white males are, of course, neutral, while everybody else has a point of view. But everybody has a point of view on most issues, and the job for the judge is to separate out his or her personal views from his or her professional role and to strive to take an ‘objective’ approach to deciding the legal issues in the case.”

In a Monday editorial, San Francisco Chronicle editors emphasize that there’s little in his judicial history to suggest Walker would be biased in this case:

A judge’s sexual orientation does not inherently shade his ability to read and interpret the US Constitution with clear-eyed wisdom. Assuming this case advances on appeal, no matter how Walker rules, there almost certainly will be jurists who will need to set aside their religion's teachings - and, quite likely, the impact of their ruling on close friends or even a family member - as they do their utmost to uphold the meaning of the Constitution.

Walker did not think his private life was relevant to his ability to preside with fairness in the Prop. 8 trial. There is nothing in his long and laudable career to suggest otherwise.

For their Sunday column, Matier and Ross talked to San Francisco politicians and court regulars who have been in on the “open secret” that Walker is gay. They quote state Sen. Mark Leno (D-San Francisco), who is gay, and said he has “great respect for Judge Walker, professionally and personally.”

But Leno told the columnists that he saw little reason for them to write a column about Walker’s sexual orientation. “It seems curious to me,” he told Matier and Ross, that when the state Supreme Court heard a challenge to Prop. 8, the justices' sexual orientation “was never discussed.”

Ross talked with San Francisco Weekly reporter Lauren Smiley about the decision to reveal the judge’s “open secret”:

“I went online and I really couldn’t find much other than some gay blogs speculating about this,” said co-author Andy Ross. “There wasn’t anybody coming out and saying it. In the midst of this big trial, being nationally watched, I found that incredibly ironic. The biggest part was, once this trial is over, one side or the other might have tried to make an issue out of this for their own reasons. And the question would have been asked, ‘Did local media know about this? Were they hiding it?’ So, I felt like, in a way, there was a responsibility to not be complicit in all that.”

Matier and Ross point out that one of the great ironies of Walker’s current situation is that his appointment to the federal bench was strongly criticized by San Francisco’s gay community in the 1980. A then young Congress member from San Francisco, Nancy Pelosi, urged her colleagues in the senate to block Walker’s appointment by President Reagan in 1987 because he was perceived to be insensitive to LGBT issues and to the poor.

Walker’s nomination was renewed in 1989 by the first President Bush, and was finally confirmed, the Chronicle’s editorialists recall.

Opposition to Walker’s appointment arose then because he had represented the US Olympic Committee in a high-profile case that almost shut down the first Gay Games before they started in 1982. The Games were initial promoted by their founder, Tom Waddell, as the “Gay Olympics”. At the time, the official Olympics Committee allowed a wide variety of unofficial entities to use the name “Olympics”, including a variety of competitions involving farm animals. That changed when Waddell started using the name for his proposed international celebration of athletics by gay people.

The Olympics Committee sued Waddell and his organization. They were aggressively represented in court by Vaughn Walker.

Just prior to the opening of the first Gay Games in San Francisco, the organizing group was forced by Walker’s clients to destroy all of its promotional items that bore the “Olympics” name.

In Sunday’s editorial, the Chron writes:

Back then, Walker struggled to assure skeptical liberals that, as a judge, he could rule with impartiality even though he had represented the US Olympic Committee in its successful effort to prevent an athletic competition in San Francisco from being called the Gay Olympic Games. He was harshly criticized for putting a lien on the home of a gay-games leader who was dying of AIDS. Walker insisted that he was not anti-gay and was only doing his best to serve his client.

When Matier and Ross asked Walker about that part of his legal history, the judge responded, “Life is full of irony.”