Should Judge Walker's Sexual Orientation Disqualify Him From Prop 8 Case? The Short Answer is No

Editor's note: In a February 7 column, the San Francisco Chronicle reported on “the biggest open secret in the landmark trial over same-sex marriage”: that U.S. district judge Vaughn R. Walker, who is presiding over the federal lawsuit challenging California’s Proposition 8, is gay. Erwin Chemerinsky, a top constitutional law scholar and founding dean of the University of California, Irvine, School of Law, discusses the ramifications of the outing, and what effect — if any — it has on the case.

Judges constantly decide cases that might personally affect them or their family members. Female judges of reproductive age are allowed to decide cases involving the availability of abortion. Catholic judges can hear challenges to abortion laws even if their church threatens to deny them communion if they support abortion rights. Judges who are also parents can hear challenges to affirmative action programs even if they have children who might benefit or be hurt by the eventual decision.

The list of situations in which a judge’s life might be affected by the decision is endless. This is insufficient by itself to challenge a judge’s hearing of a case or an ultimate decision.

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