Now that we know about Bert, should Judge Ernie have recused himself?

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. Continue reading →