Judge Vaughn Walker, the Federal District judge who a year ago ruled California’s Proposition 8, which banned same-sex marriages, unconstitutional, was wrong. No, not about the law, which is pretty clearly unconstitutional: his opinion was fair and well-reasoned, and is likely to be upheld on appeal. Walker was ethically wrong in his handling of the delicate issue of his own sexuality, which had raised a controversy about his objectivity and ability to be impartial.
Two weeks ago, following his retirement from the bench, Walker publicly disclosed for the first time that he has been in a same-sex relationship for the past ten years. This changes the analysis regarding the propriety of his ruling on Perry v. Schwarzenegger. Walker had long been rumored to be gay; supposedly “everybody” knew he was gay. My position, as well as that of many others considering the arguments of anti-gay marriage opponents that he should recuse himself, was that sexual orientation could not and should not create a presumption of bias, any more than gender, age, race or marital status. Likewise, I approved of the judge’s decision to keep his personal life private: if his sexual orientation didn’t reasonably or fairly raise the issue of bias, then he was under no obligation to confirm or rebut what “everybody knew.”
Reluctantly, I have to agree that his disclosure, a year after his ruling, that he was in a committed relationship with a man when he was ruling on Proposition 8 alters that conclusion. A straightforward application of the judicial ethics rules compels the conclusion that Walker should have recused himself from taking part in the Perry case. [Note: I was alerted by a sharp-eyed blogger that this sentence exactly tracks with a line in the analysis of Walker’s non-recusal by National Review Online writer Ed Whelan. I had read Whelan’s piece, among several others, in working on my post, and did not intentionally steal his sentence, but it seems that I did. I apologize to him and my readers. I’ll leave Ed’s sentence here to remind me to be more careful. I should have linked to his NRO piece from the outset.]
Judge Walker wrote in his opinion that “Proposition 8 increases costs and decreases wealth for same-sex couples.” He found that marriage “benefits both spouses by promoting physical and psychological health,” and that “marriage is widely regarded as the definitive expression of love and commitment in the United States.” He concluded that “Proposition 8 places the force of law behind stigmas against gays and lesbians.”
Meanwhile, Section 455(a) of Title 28 of the United States Code requires that a federal judge must disqualify himself “in any proceeding in which his impartiality might reasonably be questioned.” Is it reasonable to question the impartiality of a judge who is ruling on a provision with an apparent impact on his personal life, welfare and happiness? The answer has to be “obviously.” A publication of the Federal Judicial Center, “Judicial Disqualification: An Analysis of Federal Law” (2d ed. 2010), section 455(a) says that the law makes it irrefutable “that judges should apply an objective standard in determining whether to disqualify,” and “obviates making subjective judgment calls about what is actually going on inside a judge’s heart and mind.”
“A judge contemplating disqualification under § 455(a), then, should not ask whether he or she believes he or she is capable of impartially presiding over the case. Rather, the question is whether a judge’s impartiality might be questioned from the perspective of a reasonable person, and every circuit has adopted some version of the ‘reasonable person’ standard to answer this question.”*
California’s Judicial Ethics Code is more general, and thus implicitly calls for judge’s to err on the side of increasing public trust in the judiciary, not giving it reason to waver.
A Judge Shall Uphold the Integrity and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective. A judicial decision or administrative act later determined to be incorrect legally is not itself a violation of this Code.
ADVISORY COMMITTEE COMMENTARY
Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn upon their acting without fear or favor. Although judges should be independent, they must comply with the law and the provisions of this Code. Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violations of this Code diminish public confidence in the judiciary and thereby do injury to the system of government under law.
The basic function of an independent and honorable judiciary is to maintain the utmost integrity in decision making, and this Code should be read and interpreted with that function in mind.
Does Judge Walker’s conduct in this matter constitute a “high standard” of conduct, or, at best, one that passes muster only through a generous reading of the law? The problem was not Judge Walker’s homosexuality, which in itself should not raise reasonable doubts about his ability to be fair and impartial, but his long term same sex relationship. He had a duty to disclose this at the outset, and based on the generally understood meaning of words like “reasonable” and “independence,” was ethically bound to recuse himself. Not doing so was a breach of judicial ethics.
* NRO’s Ed Whelan gets credit for the reference.