Although he has never officially declared himself, at least some of those who are “close” to U.S. District Court Judge Vaughn Walker say he is openly gay.  Judge Walker is the trial court judge who in a 136 page opinion just ruled that California Proposition 8 banning same-sex marriages violates the U.S. Constitution and is, therefore, void.  His ruling will undoubtedly be appealed to the 9th Circuit Federal Court of Appeal and then to the U.S. Supreme Court, where it will likely be decided by Justice Anthony Kennedy in a 5-4 decision that could go either way.  Can you imagine, after millions of votes on the part of the California electorate, this decision will likely be made by…one person.

     To be sure, this is not a blog about whether gays should be permitted to marry…other gays.  (We haven’t seen any suggestions that gays shouldn’t be permitted to marry straights.)  Nor is this a blog about the correctness of Judge Walker’s decision.  Nor is this a blog about whether one person should be able to outvote the California electorate, which is indeed an interesting question.  What this is is a blog to remind us that we should not forget the political nature of our Judiciary–what Yale Constitutional Law Professor Alexander Bikel described, tongue in cheek, in his very thoughtful book of the same title, as the “Least Dangerous Branch.”

     There have been suggestions that Judge Walker should have recused (disqualified) himself from handling this case.  Ignoring the fact that Judge Walker has not yet been “convicted” of being a homosexual, if he should not have taken this case, then must female judges not take cases involving female litigants, etc?  Further, if homosexual judges couldn’t try this case, then who could?  Wouldn’t heterosexual judges have to be disqualified for the same reason?  Or do they get a special exemption from self-interest? 

     The question is whether judges must be disqualified because of possible self-interest?  And who gets to decide whether the interest exists–if it is not admitted?  We have procedures to seek disqualification of a judge.  Those procedures were not raised by either side in this case.  Can that issue still be raised now?  By whom?  Hard to say, but one thing is for sure:  the judicial process is clearly a political one.

     The very nature of of Judge Walker’s decision was also a political one, perhaps more political than judicial.  By all accounts, Judge Walker’s lengthy opinion was much more about societal facts than about the law.  Was Judge Walker reaching a legal decision or was he writing a socio-political brief in an attempt to influence our appellate courts?  Or was he writing a fact based opinion because he knows that appellate courts give more deference to the fact findings of trial courts than to their conclusions of law?  One should also not lose sight of the fact that Judge Walker tried to publicly televise his trial of Proposition 8–until he was shot down on that by the appellate system.

     Unless it’s just that California water again, or unless Judge Walker is merely looking to spawn a new career in Hollywood, his actions, and the form of his decision in this case, remind us of just how incredibly political our least dangerous judicial branch can be.  Least dangerous?  Where one person, U.S. Supreme Court Justice Kennedy, accountable to no one, will likely decide whether the California electorate will be permitted to set the socio-political boundaries of the fundamental institution of marriage in the State of California.  How political will this ultimate judicial decision prove to be, which actually will end up deciding the socio-political boundaries of the fundamental institution of marriage across the entire United States?