2010 - %3, August

Gay Marriage and Justice Kennedy

| Thu Aug. 5, 2010 12:53 AM EDT

Dahlia Lithwick says Judge Vaughn Walker's ruling today in the Proposition 8 case was a triumph of "science, methodology, and hard work." Personally, I would have preferred an opinion that was based a little less on a mountain of science and methodology and a little more on a mountain of compelling legal doctrine, since that's what's going to matter when this case gets to the Supreme Court. Still, Lithwick does point out something else interesting about Walker's decision: he relies a lot on arguments that seem designed to appeal to Justice Anthony Kennedy:

I count — in his opinion today — seven citations to Justice Kennedy's 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas' gay-sodomy law). In a stunning decision this afternoon, finding California's Proposition 8 ballot initiative banning gay marriage unconstitutional, Walker trod heavily on the path Kennedy has blazed on gay rights: "[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse," quotes Walker. "'[M]oral disapproval, without any other asserted state interest,' has never been a rational basis for legislation," cites Walker. "Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate," Walker notes, with a jerk of the thumb at Kennedy.

Kennedy, of course, might possibly be the swing justice when this case gets to the Supreme Court, so this could be a pretty effective tactic. Maybe that mountain of facts has an audience after all.

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A Chinese Bump in the Road

| Wed Aug. 4, 2010 8:09 PM EDT

This doesn't sound good:

China’s banking regulator told lenders last month to conduct a new round of stress tests to gauge the impact of residential property prices falling as much as 60 percent in the hardest-hit markets, a person with knowledge of the matter said....Previous stress tests carried out in the past year assumed home-price declines of as much as 30 percent.

The tougher assumption may underscore concern that last year’s record $1.4 trillion of new loans fueled a property bubble that could lead to a surge in delinquent debts. Regulators have tightened real-estate lending and cracked down on speculation since mid-April, after residential real estate prices soared 68 percent in the first quarter from a year earlier.

This comes via Ryan Avent, who says:

Whatever it means for China, it's unlikely to be good for the rest of the world. China is likely to try and innoculate itself against a housing-driven slowdown by turning up the support for exporters while the financial fall-out settles. If it does, it will siphon demand away from other economies. But if it doesn't, the housing hit to China's economy will be more severe, which will have much the same effect — a reduction in the demand boost from China to the rest of the world.

It may just be a bump in the road to global recovery, but every bump is a big one these days.

Bumps make me very, very nervous these days.

"This Is a Victory for the American People"

| Wed Aug. 4, 2010 6:58 PM EDT

READ ALSO: MoJo's Josh Harkinson on San Francisco's family night and Celia Perry on why she's been waiting for this ruling since the third grade. Plus: Does Judge Walker's personal life matter?

In a jubilant and emotional press conference this afternoon in downtown San Francisco, the same-sex couples who sued to overturn California's constitutional ban on gay marriage said their victory affirmed America's most fundamental values. "I was raised to believe in the American Dream, that if you worked hard and played by the rules, everyone got an equal shot," said Jeff Zarillo, who lives with his partner in Burbank, California. "Well today, nowhere is that American Dream more real than in the state of California." A few moments later, he was overcome with tears.

Zarillo's partner, fitness expert Paul Katami, kissed him amid a supernova of camera flashes before taking his place at the podium. "Thank you, Jeff, for setting me up for a cryfest," he told a room full of chuckling reporters. "I'm already labeled the emotional one, so why not continue that? Today is a very good day."

Minutes earlier, news that that a federal court had overturned Proposition 8, the state's same-sex marriage ban, had reached the handful of activists in the room via email and text message. "He's overturned it!" shouted Gloria Nieto, a gay-rights blogger who was clutching an iPhone. She embraced Alice Hoagland, whose gay son, Mark Bingham, had died on 9/11 aboard Flight 93 while traveling to the San Francisco wedding of a Muslim fraternity brother. "I've embraced the cause of the LGBT community," Hoagland told me, "and this is a momentous day. It's a much-needed boost for us and just a delight."

Speaking before a wall of American flags strewn between the staid Greek columns of the Bentley Memorial Building, gay-rights advocates praised the ruling. "It embraced the fundamental values of freedom and fairness," said Chad Griffin, the board president of the American Foundation for Equal Rights, which underwrote the case. "Today's decision affirms that under the Constitution, a government of the people, by the people, and for the people cannot discriminate against the people."

Joining the victors were David Boies and Theodore Olson, attorneys who'd famously sparred during the Bush v. Gore Supreme Court case that decided the 2000 election. They'd put aside their differences to try the Prop 8 challenge. Olson, who served as George W. Bush's solicitor general, called the ruling "a victory for the American people." Asked by a reporter if he thought the Supreme Court would uphold the ruling, Boies added, "Ted and I have a deal: He's going to get the five justices who voted for him in Bush v. Gore and I'm going to get the four justices who voted for me in Bush v. Gore."

Turning serious, he argued that the legal arguments in favor of gay marriage were overwhelming. Even many of Prop 8 supporters' expert witnesses had been forced to concede that marriage is a fundamental right, depriving gays of that right harms them, and granting them that right doesn't hurt heterosexuals. "It's very clear," Boies said, "and we believe that will be upheld by the Ninth Circuit Court of Appeals and by the US Supreme Court."

For now, at least, the ruling by federal judge Vaughn Walker is the undisputed law of the land. A reporter asked Paul Katami if he and Zarillo planned to rush out and get married today. That might be a bit too soon, Katami said. "I need time to order cake."

Prop 8 Unconstitutional — For Now

| Wed Aug. 4, 2010 5:18 PM EDT

Judge Vaughn Walker has released his long-awaited opinion on the constitutionality of California's Proposition 8, which bans gay marriage: in a nutshell, it's not. There's no rational basis for prohibiting same-sex marriage, he ruled, and therefore it violates both the due process and equal protection clauses of the 14th amendment of the U.S. constitution. The full opinion is here.

But as we all know, his ruling per se doesn't matter. It will be appealed to the Ninth Circuit Court shortly, and after that it's sure to be appealed to the Supreme Court. What's more, a stay is likely in the meantime. So the question is, how compelling is his opinion? Is it likely to sway members of either the circuit or supreme courts?

I am nothing close to a legal expert, so feel free to ignore what follows even more than usual. But I have a feeling the answer is no. The problem is that Walker's ruling relies very, very heavily on the factual evidence provided by each side's expert witnesses. But he obviously didn't think much of the witnesses called by the defense:

[P]roponents in their trial brief promised to “demonstrate that redefining marriage to encompass same-sex relationships” would effect some twenty-three specific harmful consequences. At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn’s testimony is addressed at length hereafter; suffice it to say that he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate.

....Blankenhorn offered opinions on the definition of marriage, the ideal family structure and potential consequences of state recognition of marriage for same-sex couples. None of Blankenhorn’s opinions is reliable....[T]he court finds that Miller’s opinions on gay and lesbian political power are entitled to little weight and only to the extent they are amply supported by reliable evidence.

So the proponents' expert witnesses were, to put it bluntly, just a couple of hacks. Conversely, Walker says, he was very impressed with the plaintiff's expert witnesses. Then, following a list of 80 findings of fact, he ruled that prohibition of same-sex marriage was plainly unconstitutional:

To determine whether a right is fundamental under the Due Process Clause, the court inquires into whether the right is rooted “in our Nation’s history, legal traditions, and practices.”....Never has the state inquired into procreative capacity or intent before issuing a marriage license....Race restrictions on marital partners were once common in most states but are now seen as archaic, shameful or even bizarre....The marital bargain in California (along with other states) traditionally required that a woman’s legal and economic identity be subsumed by her husband’s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals....The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.

Italics mine. This strikes me as an Achilles heel in his opinion, since it suggests that if you think genders still have any distinct role in society at all, then there's a rational basis for prohibiting same-sex marriage. I'm guessing there are at least five Supreme Court judges who think that. But Walker doesn't: "The court defers to legislative (or in this case, popular) judgment if there is at least a debatable question whether the underlying basis for the classification is rational." He then goes on to rule not only that the plaintiffs made a better case, but that it's hardly even a debatable case:

Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest. [Italics mine.] One example of a legitimate state interest in not issuing marriage licenses to a particular group might be a scarcity of marriage licenses or county officials to issue them. But marriage licenses in California are not a limited commodity, and the existence of 18,000 same-sex married couples in California shows that the state has the resources to allow both same-sex and opposite-sex couples to wed.

This is....a bit glib, no? Obviously no one is suggesting that California lacks the printing capacity to produce more marriage licenses. And then the final paragraph:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Needless to say, I agree with every word of this. It's an exhilarating and heartening ruling and I hope the Ninth Circuit Court and the Supreme Court uphold it unanimously. But at the appellate level, the expert opinions offered in the case aren't going to be especially relevant, and that's almost entirely what Vaughn based his ruling on. What's more, Vaughn went even further, clearly displaying his contempt both for the defense's witnesses and for its decision not to bother contesting the facts, and that contempt might come back to bite him. In the end, he essentially ruled that bans on same-sex marriage are nothing more than an "artifact" of history, and I have severe doubts that this is going to withstand scrutiny. At the Supreme Court level, the briefing attorneys won't be limited in their presentation of the law, and all they have to do is show some rational reason for existing bans. It doesn't have to be a great reason, and it doesn't have to be a reason that anyone mentioned at the district level, just one that's not plainly looney. I'm not sure that Vaughn was persuasive in ruling that no such reason exists.

I hope I'm all wet about this. Obviously district courts rule on facts and appellate courts rule on the law, so maybe I'm making too much of this. But my guess is that none of the expert testimony in this case is going to make a whit of difference at the Supreme Court, and without that it's not clear the ruling can be sustained. We'll see.

Proposition 8 Overturned; Lockport, La. Reacts

| Wed Aug. 4, 2010 5:12 PM EDT

READ ALSO: MoJo's Josh Harkinson on San Francisco's family night and Celia Perry on why she's been waiting for this ruling since the third grade. Plus: Does Judge Walker's personal life matter?

Outside Lockport, Louisiana—As you've probably heard, a federal court in California just overturned the state's ban on gay marriage. It's a pretty big win for progressives and human decency (read MoJo's Celia Perry's personal take here), but how is the news being received in the more conservative parts of the country? I spent an hour today outside a grocery store in Lockport, an hour southwest of New Orleans on Bayou Lafourche, talking to everyone who came in and out to get their take on Prop 8 and gay marriage: Do they know any gay people? How do they feel about gay marriage? Is it really the government's role to ban marriage?

"They need to make up their minds and leave people to live their lives," says Darlene Verdin of Lockport. "If it's alright with your religion and everything—this is America! Leave 'em alone. It's not something I would choose, but it's a choice."

Darlene's is a common refrain. "I think if gay people want to get married, they should get married," says Sandra Moore of Lockport. "The world's changed a lot, and I think you should change with the world. I've had a gay friend since I was in high school. I have nothing against gay people. They're normal people like anyone." And here's Kissie Landry of nearby Gaines: "I guess it should be allowed. It doesn't really matter to me. People can do what they wanna do."

Gary Benoit of Lockport (he's moving to Thibodaux, though) pays the bills by capturing live reptiles and amphibians—snakes, alligators, you name it—and sells them to zoos and pet stores. "It's not as exotic as it sounds," he says. "I don't think the government should be involved," he says of gay marriage. He knows a few gay people, a lesbian couple—"and they're extremely dysfunctional. This pair is very dysfunctional." But then again, he notes, aren't a lot of couples? "I've stayed pretty open-minded."

Only one man I speak with, in a "United We Stand" t-shirt and a "Speak the Language" straw hat (the language in question is Cajun French, I think), seems adamantly opposed, but even then there's some nuance. I ask him if he's been following the case, and he says "No, I ain't been paying to attention anything." His friend Earl seconds this: "He doesn't even know if he's alive or dead!" "I'm just like you, Earl. Just like you." Here's how he explains his position: "I just can't see that. There are too many women on the street, bro! Any man can get a woman; it ain't that hard." 

Clearly, he's never listened to any country music. But does he know any gays? "My brother-in-law is gay." So do you think he should be able to get married? "I don't care what he does. Like I said, I don't deal with him, he don't deal with me, man. Alright, I gotta go now."

And so he does. He's the exception, though, although nearly everyone else I talk to seems to think they're nonetheless in the minority ("There are a lot of old-timers here," as one woman, herself something of an old-timer, explains to me). Either way, it's encouraging to drop into a rural, conservative town on the bayou and find a tacit endorsement of San Francisco values.

UPDATE: Yes, Anwar al-Awlaki Can Sue To Get Off Obama's Hit List

| Wed Aug. 4, 2010 4:30 PM EDT

The US Treasury Department has just granted the ACLU and the Center for Constitutional Rights the license they need to sue the Obama administration on behalf of Anwar al-Awlaki, an accused terrorist and American citizen who has reportedly been placed on a government "kill list." Here's the statement from the groups, who sued for the license on Tuesday:

The license issued by OFAC today will allow us to pursue our litigation relating to the government’s asserted authority to engage in targeted killings of American civilians without due process. While we appreciate OFAC’s quick response to our lawsuit, we continue to believe that OFAC’s regulations are unconstitutional because they require lawyers who are providing uncompensated legal representation to seek the government’s permission before challenging the constitutionality of the government’s conduct. Notably, OFAC has indicated that the license issued to us today can be revoked at any time. We will pursue our claim that OFAC’s attorney-licensing regulations are unconstitutional and should be invalidated.

This statement jives with what ACLU and CCR officials suggested in yesterday's conference call—namely, that even if they did get their license, they'd still sue, because they believe OFAC's licensing requirements are unconstitutional. Still, by issuing the license, Treasury is essentially calling the ACLU and CCR's bluff. This won't be an easy case for the groups to win. When I called around about potential al-Awlaki litigation back in February, sources at civil rights groups acknowledged that al-Awlaki—who's been linked to the Fort Hood shooter, the Christmas Day bombings, and even 9/11—is a particularly unsympathetic client. They weren't even particularly sure how they'd pursue the issue. "Presumably you could go to court to seek some kind of injunction or declaration," said one legal expert at a top civil rights group who asked to remain anonymous due to the sensitivity of the issue. "But there'd be all sorts of obstacles to a lawsuit like that," the expert explained.

Indeed. I asked Deborah Pearlstein, a Princeton University professor, about al-Awlaki a few months ago. She said potential plaintiffs shouldn't get their hopes up. "In general, civil suits against US government officials alleging violations of US and international law based on the government’s post-9/11 conduct (torture, etc.) have been roundly unsuccessful," Pearlstein wrote in an email. "While Al-Awlaki’s citizenship makes his case a more complicated—and somewhat more promising—case than the case of the non-citizen torture victims, I would still be enormously skeptical about the ability of such a lawsuit to succeed in US courts today."

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Idle Iron

| Wed Aug. 4, 2010 4:01 PM EDT

There are more than 1,000 idle oil and gas structures in the Gulf of Mexico, platforms and other iron detritus abandoned years ago and left to collapse into the waters. Now Rep. Raul Grijalva (D-Ariz.) is calling on the Department of Interior to force oil companies to dismantle and responsibly dispose of their old rigs.

Grijalva, chair of the House Subcommittee on National Parks, Forests, and Public Lands, pointed to a 2007 report from Louisiana State University for the Minerals Management Service (now the Bureau of Ocean Energy Management, Regulation and Enforcement) that found there are 1,227 idle oil and gas structures in the Gulf that aren't serving any purpose right now. "Structures that exist on a lease that have not produced in the last year do not serve a useful economic function," the report concluded. Dismantling the rigs would create jobs for Gulf residents, Grijalva argues. It would also help clean up the region and make the Gulf safer.

"Gulf residents should be put to work removing idle iron as soon as possible," wrote Grijalva. "This would revitalize the regional economy in several ways. By removing outdated structures, Gulf workers would help the structures owners comply with existing regulations and ensure that cleared areas are open to potential future opportunities."

In addition to all those idle rigs, there are more than 27,000 abandoned oil and gas wells in the Gulf, many of which may be inadequately sealed. Dealing with all this old and abandoned oil infrastructure is yet another task that should be prioritized in the wake of the Gulf disaster. Interior asked for additional funding in the 2011 budget to fund new positions to help deal with "aging infrastructure, hurricane damage, and idle iron," which would be a good start.

Defunding Healthcare

| Wed Aug. 4, 2010 4:01 PM EDT

Apparently the latest Republican brainstorm on healthcare reform — assuming they win control of the House in November — is to pick out bits and pieces of the legislation and refuse to fund them. Austin Frakt is worried:

Make no mistake, repeal by purse strings could create a mess. The law has many moving parts that act together to create a sensible, complete whole. And implementing a piece of legislation as complex as the ACA requires fully funding the agencies that oversee it. So, this strikes me as the most politically viable, serious attack on health reform.

....The combination of “savings” created by failing to fund implementation and tax cuts is likely to appeal to the Republican base. Keep in mind that the ACA does very little for the broad middle-class of voters who are covered in the large-group market. In these hard economic times, such voters may prefer some money in their pockets than additional spending on a program for which they expect little benefit. (Of course losing one’s job jeopardizes one’s insurance so the ACA really does add a meaningful layer of protection for all Americans.)

So, I worry about this. The legislation may be Democratic sausage, but I prefer it to the Swiss cheese the Republicans intend to dish up.

I wonder how this plays out politically? Even a landslide would only give the GOP a small majority, maybe five or ten seats, which means they'd have to keep party discipline almost 100% waterproof in order to do this. Could they pull that off?

Maybe. But minority parties have a much bigger incentive to stick together than majority parties do: the cost is zero and the PR is good. But what happens when they're running things? If Democrats can find even a dozen Republicans who aren't quite willing to make a hash out of healthcare for real — as opposed to just talking about it — then funding is safe. And they might. Talking smack is one thing, but there are still a few non-bomb-throwers on the GOP side who might flinch at voting for the real-world chaos this would produce.

Alternatively, this will all be moot because America will step back from the brink on November 2nd and have second thoughts about turning the country over to the lunacies of the tea party. For now, this is still my guess. Dems will lose 30-35 seats and maintain very narrow control of the House. I can't say I'm willing to put any money on this prediction, though.

The Prop 8 Ruling, My Moms, and History

| Wed Aug. 4, 2010 3:59 PM EDT

READ ALSO: MoJo reporter Josh Harkinson on the jubilation in San Francisco and Road Trip blogger Tim Murphy on the reaction in Louisiana. Plus: Does Judge Walker's personal life matter?

Judge Vaughn Walker in San Francisco has overturned Prop. 8, California's same-sex marriage ban. His ruling reads: "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed the evidence shows Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite sex couples are superior to same sex couples."

As the daughter of a lesbian couple that's been together for 30 years, my reaction is kind of lukewarm. Don't get me wrong: I think this is a significant milestone and a huge step forward. But this fight is far from over. Walker's ruling will be challenged all the way up to the US Supreme Court, and with that court's rightward shift, there's no guarantee it will rule the way it should. I'm not too worried though, because Walker and the opponents of Prop. 8 are on the right side of history. I've had that sense of moral certainty for as long as I can remember. And when I look back at how far the movement has come in 20 short years, today's decision is just another reminder that we're on the right track.

Consider this: It was 1989 when an American court for the first time ever granted same-sex families—and by extension my own family—some semblance of legitimacy in the eyes of the law. The case started in 1986 in New York City. Leslie Blanchard and Miguel Braschi were two men who'd been in a committed relationship for more than 10 years when Blanchard died of AIDS. Their rent-controlled apartment was leased in Blanchard's name, so the landlord saw the death as his chance to force Braschi out and jack up the rent. (Because Braschi was not related to Blanchard by birth or marriage, he didn't qualify as family in order to meet the rent-control requirements.) Braschi took the case to court, arguing that the meaning of family should not be limited to blood, marriage, or adoption but instead should be determined by the extent to which its members are emotionally and financially interdependent. New York's Court of Appeals agreed, ruling that rent-control protections "should not rest on ficticious legal distinctions or genetic history, but instead should find its foundation in the reality of family life."

It's ironic that today's focus is on marriage—one of those "fictious legal distinctions." But for better or worse, it's that legal distinction that will bring public acknowledgement and equal treatment to gay couples. And it's also that legal distinction that would have brought me—who once upon a time was embarrassed to talk about my moms—a whole lot of security and comfort growing up.

I was eight when Braschi's case was decided. Like any normal eight-year-old, I certainly wasn't up on LGBT caselaw, and I definitely didn't know how precarious my family's legal situation was. But although I didn't understand it intellectually, I could feel it in my gut. I knew that my family was different, and that most Americans didn't approve of it. No matter how loving a family is—and let me tell you, mine epitomizes the four-letter verb—that's a whole lot of shame for a third-grader to internalize. And that shame is probably part of the reason why, in October 2008, I was a sobbing mess as I spoke at my moms' wedding. (They'd scheduled the wedding before the November elections, knowing that Prop. 8 would likely pass, making their nuptials no longer legally viable.) As I stood before 150 of our closest friends and family with one mom on either side of me, so many things raced through my mind, like all the times I heard the word "faggot" casually thrown around at recess, and how Ellen DeGeneres stunned the nation when she came out on TV only a decade earlier. But most of all, the thing making me bawl like a baby was knowing that I hadn't talked to my best friend about my moms being gay until after we'd graduated from high school in 1999. And that, right there, is why marriage is so important. It's a public seal of approval. It's our society saying that one's sexual orientation, or the sexual orientation of one's parents, doesn't bestow second-class citizenship. And that it's never something to be ashamed of.

It didn't take Judge Walker's ruling today for me to know that my moms deserve the rights of marriage. But after all this time, it sure is good to hear a judge say it.

Does Prop 8 Judge's Personal Life Matter?

| Wed Aug. 4, 2010 3:50 PM EDT

READ ALSO: MoJo's Josh Harkinson on San Francisco's family night and Celia Perry on why she's been waiting for this ruling since the third grade.

Back in February, the San Francisco Chronicle took the bold step of outing Judge Vaughn Walker, who ruled today, in Perry v. Schwarzenegger, that Prop 8 is unconstitutional: "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." This was well-known among San Francisco court reporters (who didn't feel it was all that important) but juicy news to the right. Fox News ran a headline today asking, "Why Has Media Ignored Judge's Possible Bias In California's Gay Marriage Case?" The National Review has argued that the judge should have recused himself from the case because a judge must do so when he has any "interest that could be substantially affected by the outcome of the proceeding" (28 U.S.C. § 455(b)(4)).

Of course, while this plays well in the conservative media, it would be a tough argument to make in the courtroom. To state the obvious, arguing this point could mean conceding that there is a substantial difference between a domestic partnership and marriage, something the Prop 8 defendants have steadfastly denied.

The larger point, however, is that it doesn't matter what Walker's sexual orientation is. He's an extremely well-qualified judge who, despite the right's complaints, has shown himself to be an impartial and unbiased jurist throughout his career and this trial. Actually, as the two-and-a-half-week trial began, there were some serious concerns in the LGBT community. After all, this is the same Judge Walker who was appointed by George HW Bush after a failed appointment by Ronald Reagan; the same Judge Walker who was harshly criticized by Nancy Pelosi for being insensitive to gays; and the same Judge Walker who prevented the "Gay Olympics" and put a lien on an AIDS-stricken organizer's home.

Throughout the court trial, he peppered both sides with equally tough questions. Interjecting often, he was clearly an engaged and active participant. He gave little quarter to either attorney, and it showed in his follow-up questions during closing arguments. There, it became clear that not all arguments are created equal, and given the number of "I don't know"s and "I don't have to prove anything"s that the Prop 8 defenders responded with, the right has only intself to blame for Walker's ruling. (See page 144 of the closing arguments transcript [PDF].)

However, while his sexual orientation does not matter from a legal perspective, it does put the judge in a tough position politically and personally: No matter how he ruled, he was bound to come off as biased, insensitive, or both.