Is Vaughn Walker Gay? Federal Judge Who Struck Down Prop. 8 is Homosexual

Vaughn R. Walker, the Chief Judge of the United States District Court for the Northern District of California, is a homosexual. In the pre-Stonewall Days before gay liberation, newspapers might describe someone of the gay persuasion as a "notorious homosexual," particularly if they -- like British actor John Gielgud or American singer Johnny Ray -- got busted "cruising" for gay sex in a men's room. Gay bars were often rousted, even in cosmopolitan cities like New York and San Francisco, well into the 1970s.

Judge Walker, the Republican with libertarian leanings, definitely has become the most "notorious" homosexual in the United States to homophobes, bigots and campaigners against gay rights due to his decision striking down California Proposition 8 that amended the Golden State's constitution to ban gay marriage.

Some publications have resurrected the quaint phrase "practicing homosexual" to describe Judge Walker.

Out of the Closet

According to the Library of Congress Web site, Judge Vaughn Walker is one of only two federal jurists to be out of the closet, a remarkable state of affairs in 2010, as there must be many more gay federal judges. That, in itself, is a testament to continued anti-gay bias.

Opponents of gay marriage called the conservative Republican jurist a stalking horse for gay rights, a sort of Manchurian candidate from beyond the pale of heterosexuality who had been activated by this case to assassinate traditional family values.

On his part, sources who knew Judge Walker told the press that his homosexuality did not influence how he decided the Prop. 8 case.

A fellow federal judge who is an intimate friend of Walker told the San Francisco Chronicle of a private conversation they had.

"He has a private life and he doesn't conceal it," the friend told the Chronicle, "but doesn't think it is relevant to his decisions in any case, and he doesn't bring it to bear in any decisions."

The case was randomly assigned to Judge Walker. The judge, who was demonized by the gay community nearly a quarter century ago when he was in private practice, said his getting the case that ultimately might decide the fate of gay marriage in the entire country was one of life's ironies.

Reagan/Bush 41 Appointee

Ironically for the openly gay jurist who struck down the ban on gay marriage that likely will lead to the U.S. Supreme Court legalizing gay marriage throughout the United States, Vaughn Walker's 1987 nomination to a federal judgeship by President Ronald Reagan failed despite a Republican majority in the Senate, partly due to his perceived homophobia. In '87, Senate Democrats in the Judiciary Committee blocked the nomination not on the grounds of suspected anti-gay bigotry but because Walker was a member of an all-male club.

He resigned during the nomination process. Gays were opposed to Walker's nomination in '87 as he had, as a lawyer, handled the U.S. Olympic Committee's lawsuit against the Sam Francisco-based Gay Olympics for trademark infringement.

That year, future Speaker of the House Nancy Pelosi, who was then a freshman in Congress representing a district that included part of San Francisco, the gay mecca of America, was very vocal in her opposition to Walker. The lawyer, a known conservative and a Republican nominated by a conservative President who liked to crack gay jokes on Air Force One (Dutch's fag jokes included the former B-movie actor using a mock falsetto voice to imitate an effeminate homosexual, with hands on hips and mincing gestures, according to Kitty Kelly's book on his wife Nancy) had not come out as gay then.

Like Dutch Reagan, Walker was a transplanted Californian and a native of Illinois, born in Watseka in 1944. He is a 1966 graduate of the University of Michigan and took his juris doctor degree in 1970 from Stanford Law School. From 1971 to '72, he clerked for Judge Robert Kelleher of the U.S. District Court for the Central District of California. In 1972, he joined the San Francisco law firm of Pillsbury, Madison & Sutro.

After his first nomination to the federal bench stalled, two years later, President George H. W. Bush nominated Walker to the seat being vacated by U.S. District Court for the Northern District of California Spencer M. Williams, a Nixon appointee. Walker was confirmed by the Senate with unanimous consent in 1989, a startling contrast to his treatment in 1987. He became the senior judge in his district in 2004.

Ironically, one of the critics of Judge Walker is Edwin Meese, who was Attorney General when Ronald Reagan nominated him to the federal bench. Meese was the one responsible or vetting Walker at the time. Twenty-three years later, he wrote an op-ed piece in the New York Times accusing the Republican jurist of pro-gay bias.

Legal Philosophy

Walker believes in a legal approach known as law and economics. Also known as the economic analysis of the law, adherents to the law and economics school apply economic analysis to the law and legislation. They use economics to explain the effects of laws and to weigh the economic efficiency of laws and regulations. Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit (Chicago) is the most prominent and influential jurist in the law and economics school of legal theory.

Elucidating the influence of the school, The Journal of Legal Studies claimed that Judge Posner -- who also teaches at the University of Chicago Law School -- is the most cited legal scholar of all time.

As a judge, Walker is seen as conservative but independent-minded with a libertarian streak. He ruled that the National Security Agency's conducting of electronic surveillance without a search warrant was unconstitutional.

In the field of gay rights, Walker held in a 1999 case that the First Amendment rights to religions freedom of a boy who claimed they were violated by a teacher who made pro-gay comments were not breached. He also, in a 2005 case, ruled that a city could prevent employees from handing out anti-gay propaganda on the basis that it had a duty to prevent discrimination.

Judge Walker wrote in that case that the city of Oakland, California had "significant interests in restricting discriminatory speech about homosexuals...(and has) a duty under state law to prevent workplace discrimination on the basis of sexual orientation."

Gay Marriage Ban

Judge Walker began hearing the case of Perry v. Schwarzenegger in January 2010. Significantly, neither Governor Arnold Schwarzenegger, who was named as a defendant on the case, or Attorney General Jerry Brown, the former governor and chief lawyer for the state, would defend the state and the upholding of Proposition 8. It has passed by 52%, just enough and then some to make it (temporarily) the law of California, but hardly a ringing repudiation of the California Assembly's legalization of gay marriage.

Proposition 8, a state referendum that amended the state constitution to define marriage as being between a man and woman, overturned a 2008 California Supreme Court decision that overturned laws banning same sex marriage as unconstitutional. The California Assembly enacted a law banning gay marriage in 1977, while Proposition 22 (The Defense of Marriage Act) that was passed by voters in the year 2000 enacted a statute stating, "Only marriage between a man and a woman is valid or recognized in California."

As Prop. 22 created an ordinary statute, it could be challenged legally as to its constitutionality. It failed to pass muster, which led to the Proposition 8 initiative in 2006. While Prop. 22 was approved by 61% of the California voters, Proposition 8 -- which was more serious in that it actually amended the state constitution -- passed with only 52% of the vote.

"Prop. 8" amended the California Constitution to define marriage in accordance with he federal Defense of Marriage Act. Prop. 8 added a Section 7.5 of the Declaration of Rights defining that "only marriage between a man and a woman is valid or recognized in California. It was upheld by the California Supreme Court.

Proponents of gay marriage and equal rights subsequently filed a case in federal court claiming it violated the federal constitutional rights of gay people.

They successfully argued before Judge Walker that Prop. 8 violated the Due Process and Equal Protection Clauses of the U.S. Constitution. Walker found that it did violate gay people's rights by privileging heterosexual unions above those between gay people. He also found that anti-gay bigotry was behind the initiative process to get Prop. 8 passed.