Conservatives: Prop. 8 should be reinstated because judge who struck it down is gay

Conservatives in California, incensed by a U.S. District Judge who overturned the state's ban on same-sex marriage, are claiming in an appeal that the decision should be nullified because the judge is actually a gay man.

U.S. District Judge Vaughn Walker, who overturned the same-sex marriage ban known as Proposition 8, retired from the federal bench at the end of 2010. Walker publicly came out as a gay man to reporters last week, and disclosed that he had been in a relationship with another man for 10 years — the rhetorical ammunition those opposed to same-sex marriage are using for their latest attack.

Walker's sexuality had been an open secret in legal circles for years (he has been in a relationship with a doctor for 10 years), but his public disclosure, Prop. 8 proponents declared, meant that Walker had a "clear and direct stake"  in legalizing same-sex marriage.

Walker told reporters last week that he never considered recusing himself from the case, because sexual orientation should never be a basis for a legal decision, theSan Jose Mercury News reported.

In his court decision to overturn the constitutional ban, Walker wrote, "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed the evidence shows Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite sex couples are superior to same sex couples."

The state refused to appeal Walker's ruling in favor of same-sex marriage, and is now deciding whether individual supporters will be allowed to.

Rory Little, a Hastings College of the Law professor, scoffed at the pro-Prop. 8 group acting like Walker's sexual preferences and long-term relationship were a revelation, calling it disingenuous.

"It frankly sounds like an act of desperation," Little told the Mercury News. "Their position is shot through with illogical jumps."

Indeed, the San Francisco Chronicle printed in 2010, while Walker was presiding over the Prop. 8 case, that the judge was gay, and noted that his history of legal decisions doesn't show a pro-LGBT bias. In fact, when Walker was first nominated for the bench by President Ronald Reagan in 1987, his confirmation was slowed because House Democrats, including Rep. Nancy Pelosi, felt he had shown "insensitivity" to low-income and LGBT people.

"This reeks of a Hail Mary attempt to assail Judge Walker's character because they are unable to rebut the extremely well-reasoned ruling he issued last year," Jon Davidson, legal director for Lambda Legal, told the Mercury News of this latest attempt to ban same-sex marriage in California.

Image via WikiMedia Commons.