The Double Standard Over Criticism of Prop 8 Judge Vaughn Walker

In the coverage of Proposition 8, some media outlets have acted more like gossip-obsessed teenagers than responsible journalists, at least when it comes to the sexuality of Vaughn Walker, the judge who struck down Proposition 8 in Perry v. Schwarzenegger.

On a number of networks and especially in conservative media coverage, these vitriol-peddlers keep citing one San Francisco Chronicle article that called the U.S. District Court justice's homosexuality an "open secret." However, Walker has not responded to these claims, and the question of whether he is gay, however irrelevant, has not been substantiated.

Critics have even used the speculation about Walker's sexuality to challenge the validity of the case. The argument goes: because Vaughn is gay, he cannot be impartial, and thus should have recused himself. At least this is how it went in a recent issue of the conservative Washington Times.

This is an absurd double standard. By this logic, the sexual orientation of straight judges would have clearly gotten in the way of their rulings, too. Likewise, should the first black U.S. Supreme Court Justice, Thurgood Marshall, have refused to vote in Civil Rights cases? Clearly no.

Media Matters exposed some of the double standard on the "fair and balanced" cable news channel Fox News, where a commentary by author Liz Trotta insinuates that Walker's opinion was biased. First, she claims that the "liberal media" has glossed over the "fact" that Walker is "openly gay," and later she goes on to claim that Walker had a "vested interest" in ruling Proposition 8 unconstitutional. Check out the video from Media Matters.

A recent New York Times article also tackled the issue, but included the insight of some legal ethics experts, including Hofstra Law School professor Monroe H. Freedman, who said that although bias rarely leads to recusal, “you could say, ‘If a gay judge is disqualified, how about a straight judge?’ There isn’t anybody about whom somebody might say, ‘You’re not truly impartial in this case.’”

In the same article, Stephen Gillers, a New York University Law School Professor, brings up the bigger issue: it is too late to question Vaughn's partiality. “You can’t wait to see how a judge will rule and then say he’s the wrong judge,” Gillers wrote.

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