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Should a Gay Judge Recuse Himself In Deciding the Constitutionality of Proposition 8?

A recent column in the San Fransisco Chronicle begins, "The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay." [Hat Tip: ATL]

As the column indicates, Prop. 8's proponents (smartly) have not objected to Judge Walker on the basis of his orientation. There's been no indication of any bias in this trial, and I don't think that a judge's impartiality can be questioned on the basis of his sexual orientation.

That said, 28 U.S.C. § 455 (b)(5) states that a judge should disqualify himself if anyone within a third degree relationship to him or his spouse "is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding." A decision that gay marriage restrictions violate the U.S. Constitution necessarily would have a substantial effect on the interests of gay people and those close to them. These interests would vary from the fundamental (e.g., the right to marry) to the mundane (e.g., taxation and inheritance rights). In fact, the case would affect whether a judge's same-sex partner falls within the designation of "spouse" under these very recusal rules.

I don't know (or have any interest in) anything about Judge Walker's private life, such as whether he has any minor children. But even if he is single and has no children, the legal rights that would accrue from any future relationship would be directly affected by this case.

Again, I don't think impartiality can be reasonably questioned on the basis of orientation. I'm just wondering if Judge Walker may be deciding a case in which he has an interest. (Of course, since Prop. 8 supporters have argued that gay marriage undermines the traditional institution of marriage, one could argue that all heterosexual judges should recuse themselves, too.)

Full post as published by Nuts & Boalts on February 08, 2010 (boomark / email).