Judge Who Ruled on Prop. 8 Speaks

Legal history of same-sex marriage subject of Roth Lecture

by Darren Schenck
photos by Lori Craig

Over the course of his 21-year-career as a federal judge for the Northern District of California, the Honorable Vaughn R. Walker (Ret.) became associated with the notably complex cases over which he presided, including Apple Computer, Inc. v. Microsoft Corporation, antitrust litigation over Oracle’s merger with PeopleSoft, and a lawsuit involving the NSA’s terrorist surveillance program.

The Honorable Vaughn R. Walker (Ret.)

But the only case anyone wants him to talk about, said Judge Walker at the outset of remarks at Town & Gown Monday night, is Perry v. Schwarzenegger, the landmark suit arising from the passage of Proposition 8, which made same-sex marriages unlawful in the state of California.

Two years ago, Judge Walker ruled that Prop. 8 was unconstitutional under the Due Process and Equal Protection Clauses of the United States Constitution, a decision later affirmed by the Ninth Circuit Court of Appeals. He retired from the bench in February 2011.

Judge Walker spoke about his ruling and the sometimes turbulent history of same-sex marriage for the 2012 Justice Lester W. Roth Lecture.

“For a very long time after being involved in the Perry case, I avoided speaking about it at all,” Judge Walker said, noting that the case was on appeal. But wherever he spoke, audience members asked about Prop. 8.

“In a sense, this afternoon I’m throwing in the towel on my reticence to speak on the Perry case,” he said.

Judge Walker offered reflections on the evolving legal status of same-sex marriage, detailing a timeline of significant and often contradictory legal rulings over the past few years, including the Prop. 8 case.

“I will never forget the day that I drew that complaint,” he said. “I noticed the name ‘Schwarzenegger’ and thought, ‘Well, this will be interesting.’ Then I started reading the complaint and realized, ‘This is going to be very interesting.’”

“In a way it began in my hometown of San Francisco, when [then-Mayor] Gavin Newsom authorized issuance of marriage licenses to same-sex couples,” he said. “Eighteen-thousand same-sex couples were validly married; in the meantime, there was an extensive campaign that led to the enactment of Proposition 8.”

Prop. 8 was passed by California voters the same year that same-sex marriage became legal in Connecticut, Judge Walker said. He also mentioned that the Iowa Supreme Court held that same sex marriage was lawful in 2009, but in 2010, Iowa voters removed three of the justices that had found that prohibition of same-sex marriage was unlawful.

Judge Walker said the road to marriage equality was lined with such contradictory rulings and events, a journey he described as, “A step forward, a step back.”

He also outlined the tortuous path beaten by defenders and detractors of the U.S. military’s “Don’t ask, don’t tell” policy and the Defense of Marriage Act.

“It’s quite a remarkable train of events just in the last couple of years or so,” he said. “It’s a rapidly evolving situation with respect to marriage equality.”

Judge Walker closed his lecture with three observations on the place of gays and lesbians in society and under the law.

Dean Robert K. Rasmussen and Judge Walker

“First, the increasing visibility of gays and lesbians in society – arts, culture, the legal profession – is particularly notable,” he said. “If you go back to 1986, the Bowers [v. Hardwick] case, gays and lesbians were not a visible part of our society. They didn’t appear in the popular culture… today, by contrast, it’s hard to escape gays and lesbians, even if you wanted to, in the popular culture.”

Judge Walker also noted that in the 2010 census, roughly 3 percent of the population identified themselves as gays or lesbians. Their increased visibility has influenced court rulings in ways unforeseen even 20 years ago, he said.

“Notwithstanding what one of your prior lecturers may have spoken about, don’t think for a minute the Constitution is not a living document,” Judge Walker said, in an apparent reference to Supreme Court Justice Antonin Scalia, who delivered last year’s Roth Lecture. “It is and it must ever, because it lives in a society that is ever-changing, and ever-growing.”

Judge Walker described what he called the “decreasing importance of gender in our society and the virtual obliteration of gender distinctions in the law.”

Finally, he spoke about the role that moral disapproval and religious doctrine might play in future court decisions.

“Have we decided in a multicultural nation such as ours, in a multicultural world such as ours, that law must be based on secular considerations, not on considerations of religious doctrines or religious beliefs? I don’t think we’ve quite reached a resolution on this, and perhaps we never will.”