Judge who struck down California’s gay marriage ban speaks out


SAN FRANCISCO — On a May day in 2009, Vaughn Walker was going through one of his weekly routines as a federal judge, reviewing a stack of new lawsuits assigned to his San Francisco chambers, when one case caught his eye: Perry v. Schwarzenegger.

At the time, Walker had no inkling that history might rest in those pages, that one of the most important legal collisions in the nation over same-sex marriage might hang in the balance. In fact, at first, all Walker noticed was then-Gov. Arnold Schwarzenegger’s name.

But it did not take long for the veteran chief judge, himself quietly but openly in a longtime gay relationship with a doctor, to realize that he had inherited the legal challenge to Proposition 8, California’s ban on same-sex marriage. The silver-haired judge with the iconoclast’s reputation would be center stage in the gay marriage controversy.

“That’s when I had the —‘Oh (my)’ moment,” Walker told the San Jose Mercury News during an interview last week, recalling that he was already mulling retirement when the lawsuit landed on his desk.

The case temporarily took retirement off the table for Walker. And now the Proposition 8 showdown has reached the U.S. Supreme Court, which will hear arguments on March 26 and, to some extent, review Walker’s handiwork before ruling by June. Walker, after conducting an unprecedented trial, in 2010 declared the state’s gay marriage ban unconstitutional, saying the law had no social justification and singled out same-sex couples for discrimination.

A federal appeals court agreed with Walker, although it took a much narrower approach in invalidating Proposition 8. Still, Walker’s role has shaped the nearly four-year legal battle over same-sex marriage rights in California.

Walker, soon to turn 69, retired from the federal bench after finishing the case, and he now practices law from a spartan corner office he leases from a law firm in the Embarcadero, while also doing some teaching at the Stanford and UC Berkeley law schools.

Walker wasn’t always so sure the Proposition 8 case would reach the Supreme Court, although he prepared from the outset for that possibility. He notes that the gay marriage debate was at a different juncture in 2009 — few states had legalized same-sex marriage (nine do now), and President Barack Obama was still several years away from backing same-sex marriage rights in the courts.

“It was a different time, and the Supreme Court doesn’t always get out in front of public opinion,” Walker said. “Not that many cases go to the Supreme Court.”

Over the objections of Proposition 8 backers, Walker ordered a full trial to establish a complete record on the arguments from both sides, aware the higher courts would review whatever he decided. “If you are going to have an issue that deals with a significant constitutional matter, it pays to have some facts that are established the old-fashioned way,” he said.

But, to Walker’s surprise, after lawyers for same-sex couples put on a parade of witnesses, gay marriage foes put on scant evidence, offering just two witnesses, including one who later came out in favor of same-sex marriage rights. “I did think the proponents of Proposition 8 would put on a case,” Walker said.

“It never occurred to me that they would … ,” and his trademark baritone trails off. Walker asks for the correct baseball term for taking a swing and a miss at a pitch and then just shrugs.

Walker is matter-of-fact about the eventual fallout from declaring Proposition 8 unconstitutional. As he told the Commonwealth Club recently, he believes same-sex marriage is “an idea whose time has come,” and he sticks by that belief.

But for his view, Walker has faced withering criticism from conservative and religious foes of same-sex marriage who attacked his fairness in deciding the case while in a long-term same-sex relationship. Even though Walker notes that his sexual orientation had been an open secret in the Bay Area legal world for about a decade before the Proposition 8 case, he was not entirely surprised when the issue surfaced.

“At the outset of the case, I wondered whether my personal situation would become an issue,” he said.

Proposition 8 lawyers tried, unsuccessfully, to set aside Walker’s ruling, arguing the judge was biased and should have disclosed the relationship before trial. Walker makes no apologies for that decision, saying it would be a dangerous precedent for all federal judges. The bias argument, he adds, was the Proposition 8 team’s “Hail Mary.”

With the historic arguments drawing closer, Walker makes no predictions about the Supreme Court outcome. And he says he’ll leave it to others to define his role in what many consider the most important civil rights case to reach the high court in decades.

“The remembering is for others to do,” he said, “whether I like what others remember or not.”