SAN FRANCISCO — The judge presiding over the first serious challenge in federal court of a state gay-marriage ban has defined his career with an unconventional approach.
Two days into the trial over the constitutionality of California’s Proposition 8 gay-marriage ban, Judge Vaughn Walker has upset some opponents of gay marriage by allowing gay couples to testify on the meaning of marriage.
The 65-year-old judge has tried to breach the longtime ban on TV cameras in federal court by ordering the trial to be posted on YouTube — though the Supreme Court has temporarily stayed that decision.
On Monday, the first day of the trial, he repeatedly asked the lawyers: Why don’t states “get out of the marriage business? It would solve the problem.”
Judge Walker has been open to testimony that was “totally irrelevant to the issues of the case,” said former U.S. Attorney General Edwin Meese III. He wrote in Sunday’s New York Times that Judge Walker has tilted the case in favor of gay-marriage proponents.
Judge Walker, through a clerk, declined to comment. He has a mainstream Republic pedigree. He was nominated for a judgeship by President Ronald Reagan in 1987, when Mr. Meese was attorney general.
Democrats assailed the nomination because Judge Walker was member of an all-male private club. (He resigned his membership during the nomination process.) Gay-rights activists protested his appointment because, as a private lawyer, he had represented the U.S. Olympic Committee in a copyright suit against an organization called the Gay Olympics.
ut since Judge Walker was appointed to the bench in 1989, he has proved to be “unpredictable, both politically and judicially,” said Rory Little, a professor at Hastings College of the Law who has handled cases in front of Judge Walker.
In 1994, for example, the libertarian-leaning judge surprised many conservatives by saying he favored decriminalizing drugs.
Inside the San Francisco federal court — where he is chief judge — Judge Walker has tried to build camaraderie among jurists and attorneys. At the court’s annual conference, he hosts a dinner where he makes a speech in his deep baritone and often invites a magician to perform.
He has shown a quirky side on the bench, too, taking a more active role than most judges in coming up with novel solutions to legal problems.
The judge tried to auction off lead-counsel status in securities class actions to the plaintiff lawyer demanding the lowest fees (a decision overturned on appeal). In 2003 he ordered a mail thief to wear a sign reading “I have stolen mail. This is my punishment.”
He frustrated Republicans in the years after Sept. 11, 2001, by not immediately dismissing lawsuits relating to government wiretaps.
“He’s not concerned with political correctness,” said Arthur Wachtel, who represented the mail thief, Shawn Gementera. At the time of the case, Mr. Wachtel criticized the judge and unsuccessfully tried to get an appeals court and the U.S. Supreme Court to overturn the sentence, which he compared to Nathaniel Hawthorne’s “The Scarlet Letter.” But now, he said, he has come to respect Judge Walker’s willingness to come up with “innovative” rulings.
In the Proposition 8 case, Judge Walker has ordered the disclosure of private records from the campaigns for and against the gay-marriage ban in an effort to determine the intent of supporters. The order was overturned on appeal. Mr. Meese called the order an “invasion of privacy.”
The judge has also allowed gay and nongay experts to discuss the meaning of marriage, and he permitted testimony about how Proposition 8 supporters feel about gay people.
Last year, Judge Walker was skeptical of the argument by supporters of a gay-marriage ban that marriage was for procreation, saying in a pretrial hearing that he had officiated over the recent wedding of a 95-year-old to an 83-year-old. “I did not demand that they prove they intended to engage in procreation,” he said.
While many of the judge’s decisions to include far-reaching evidence in the case may seem odd, Mr. Little said, they could increase the likelihood that the court’s decision stands the long run. By allowing so much testimony, the judge is creating “as big a factual record as possible,” therefore minimizing the chances that, once the trial is over, an appeals court will overturn the verdict for a lack of evidence, he said.