Why the New Prop 8 Argument Is Bogus—and Offensive

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To suggest that Judge Vaughn Walker could not preside over a trial on gay marriage because he is gay defies all legal reasoning

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Updated: 4:43 p.m. See below.

The legal argument that a veteran federal judge cannot fairly preside over a trial involving gay marriage because he is gay and in a relationship is so preposterous that it requires me to use a sports analogy to express my disdain. I know: Now-retired U.S. District Judge Vaughn Walker, first appointed by President Reagan and then re-appointed by President George H.W. Bush, surely deserves better than that for his patient work on the Proposition 8 case. But it's the best I can do in the circumstances.

So let me take you to the baseball diamond. It's the Yankees versus the Red Sox (don't read anything into my selection of teams, pick your own if you'd like). The Red Sox are crushing their opponents. It's 15-0 in the 6th inning. The Yankees' pitchers aren't pitching and the Yankees' hitters aren't hitting. The bases are loaded with Sox and New York manager Joe Girardi decides after a visit to the mound not to replace his pitcher, who has been battered about like a rag doll by Boston's hitters.

What we have here with this new argument, then, is a vestige of the very bias and bigotry that gay and lesbian Americans have had to deal with for all these years.

"Are you sure about that decision, Joe?" the home plate umpire politely asks Girardi as the manager begins to walk off the field. "I just want to make sure I've given you a chance to try something else."

"We're fine, ump," Girardi responds. And the game continues. It ends 21-0. Eight months later, the Yankees find out that the umpire was dating someone from Boston. They immediately call Major League Baseball Commissioner Bud Selig and share with him their new evidence.

"The game was rigged!" the Yankees cry. "That ump had it in for us. The fact that he is dating someone from Boston creates a reasonable suspicion that he was unfair and called the game in favor of the Red Sox. The game should be a do-over."

"But you guys got crushed," Selig responds. "It was never a close game. What, possibly, could this umpire have done to influence the impact of this game more than he otherwise would do in the normal course of business?"

"He's from Boston, judge," the Yankees say. "That's all you really need to know."

That is the magnitude of the silliness we are talking about here. That's how much of a rout last summer's Proposition 8 trial was. And that's why the argument, now made by some same-sex marriage opponents, is so dubious. Having lost on the merits, and with polls showing support for same-sex marriage growing, Prop 8's tribunes want to vacate Judge Walker's landmark ruling because he is gay and in a relationship. That's right. Having come to court with virtually no evidence or arguments, having had their hats handed to them by same-sex marriage proponents David Boies and Ted Olsen, Prop 8's tribunes now are saying that they were jobbed by the umpire's bias.

I don't mean to suggest that the constitutional issues surrounding same-sex marriage are entirely lopsided in favor of expanding marriage rights. The case is close and likely will come down to a single vote (Justice Anthony Kennedy's, to be exact) on the United States Supreme Court. But the Prop 8 trial over which Judge Walker presided was not remotely a close call. And no judge in America is going to buy this scurrilous new argument. This is especially so since Judge Walker, like my pretend baseball umpire, practically begged Prop 8's attorneys during the trial last year to present a stronger case. Here is how I wrote it up last summer for the (now dearly departed) Politics Daily:

Take, for example, the bizarre courtroom display Wednesday by Charles Cooper, the lead attorney for defenders of Prop 8. His side presented only two witnesses during the long course of the trial, neither of whom was particularly compelling. In fact, one of the defense witnesses, David Blankenhorn, was so hapless during his testimony a while back that Judge Walker on Wednesday questioned his credentials as an expert on marriage. When you have bad facts, you argue the law. When you've presented little evidence, or the evidence you've presented is not so hot, you say that evidence doesn't matter. That's partly why Cooper told Judge Walker during closing arguments, "Your honor, you don't have to have evidence for this."

To his credit, Judge Walker did not take Cooper's statement lightly -- the facts of this case surely do matter. As recounted well by AOL's Richard Paddock, the judge then asked Cooper: "Seven million Californians, 70 judges and this long history that you described. Why did you present but one witness on the subject" of the impact of Prop 8? Later, after Cooper admitted he didn't know what effect the banning of same-sex marriage would have, Judge Walker said: "Is that enough to impose restrictions on some citizens that other citizens don't suffer?" The exchange is telling because the "effect" of Prop 8 is a factor judges must weigh in the great constitutional balancing this case requires.

Judge Walker's decision is going to stand or fall on appeal on its merits; whether the ballot initiative violated the equal protection rights of California's citizens to marry their same-sex partners. It is going to be decided upon whether his findings of fact and conclusions of law were correct, and reasonable, and legally justifiable. It is not going to be decided by whom the judge is dating or what his sexual orientation may be. And it is certainly not going to be decided because a trial judge failed to disclose to the litigants before him who he was (or was not) seeing during the trial.

No reasonable person in America today would challenge a black judge by claiming he could not fairly judge a civil rights case. No reasonable person in America today would challenge a female judge claiming she could not fairly judge a case about women's health. What we have here with this new argument, then, is a vestige of the very bias and bigotry that gay and lesbian Americans have had to deal with for all these years. How ironic that a case designed to eliminate official prejudice would generate such prejudice against an official. Like I said, Judge Walker surely deserves better than this offensive new wrinkle in the case of his lifetime.

Update: 4:43 p.m. EDT. Correspondence from a federal trial judge today after reading the piece: "So, I'm not gay. Does that disqualify me as well from deciding a case? I've never killed anyone, either. Does that mean I should recuse from trying the six murder cases assigned to me? I am a father. Must I disqualify myself from any case involving Planned Parenthood?" 

Image credit: Reuters/Beck Diefenbach

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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