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U.S. District Judge Vaughn Walker

Sara Lewinstein is a keenly interested observer in the legal battle over Proposition 8, the ban on gay marriage. She knew Vaughn Walker, the judge who will rule on its legality, from her days as a lesbian activist in 1980s San Francisco. As Lewinstein, now 56, remembers it, “nothing was good when his name came up.”

When Walker was a young attorney, he represented the U.S. Olympic Committee in a legal battle to stop a gay athletic competition from using the name “The Gay Olympic Games.” Lewinstein worked for the event, and had a daughter with its founder, fellow gay athlete Tom Waddell. During the court fight, the Olympic Committee’s legal team did something that hurt Lewinstein in a very personal way. They took out a lien on Waddell’s house as he was dying of AIDS.

At the time, Lewinstein was grieving and upset when someone told her about an aspect of attorney Vaughn Walker’s life that has since been part of the public conversation as he presides over the Prop. 8 trial: Walker is a gay man. Her experience and the history of the Gay Olympics case, as well as Walker’s broader record as a jurist, suggest that any easy assumptions about how the judge’s personal perspective might influence the outcome of the Prop. 8 trial are just that.

Discussion of Walker’s sexual identity came to the fore in February when the San Francisco Chronicle reported that Walker is gay. The story appeared beneath the headline: “Judge being gay a nonissue during Prop. 8 trial.” Walker did not comment on his sexuality in the story, and he has neither confirmed nor denied being gay in subsequent reports.

Walker has been characterized as a judge who believes strongly in personal privacy—his sexuality is not something that he has hidden, so much as something that he has chosen not to publicly present. Walker declined to be interviewed for this article, citing the impending ruling in the Prop. 8 case.

When Walker was randomly assigned the federal no-jury trial, some Bay Area LGBT legal activists had heard that Walker might be gay, according to Kate Kendall of the National Center For Lesbian Rights in San Francisco. But they saw his sexual orientation as less relevant to how he might rule than his political leanings, which Kendall described as “right of center.”

Indeed, Walker faced controversy early in his judicial career – for allegedly being anti-gay. His appointment to the federal bench by Ronald Reagan in 1987 was stalled for several years while critics attacked him for his role in the “Gay Olympic Games” litigation.

The attorney who opposed Walker in the case argued that the event was unfairly singled out among many others that also used the word “Olympic,” including a Police Olympics and a Rat Olympics. This selective enforcement, she said, constituted discrimination.

Others disagreed.

“This was not a discrimination case; it was a simple, boring trademark case,” wrote John Huhs, another lawyer for the International Olympic Committee at the time, in an e-mail. “Never in my presence was there any anti-gay sentiment expressed—and certainly not by Vaughn.”

The legal fight ultimately traveled all the way to the Supreme Court, where it was decided in favor of the U.S. Olympic Committee. To recoup legal costs, a lien was placed on the home of event founder Waddell. The lien was lifted around the time of Waddell’s death, but for Lewinstein, this was a bitter and painful period.

“I can forgive, but I’m not ever going to forget,” said Lewinstein of Walker. “I don’t care if the man is gay or not, to be truthful. What I care about is the reason he works as a judge, the things he has sworn to uphold.”

During 20 years on the federal bench, Walker has been known for his independence. He allowed attorneys to bid for lead counsel position in securities class-action suits. He has ruled that NSA surveillance without warrants is illegal, found that Microsoft did not infringe on copyrighted Apple software and opted to allow reporters to observe the full process of lethal injections in death penalty cases.

He is also known for putting a surprising twist on his cases, like sentencing a man to wear a sign that read, “I stole mail. This is my punishment.”

Before the closing arguments in the Prop. 8 case, Walker requested that both sides answer a series of questions about sexuality, marriage and the democratic process. Walker asked, “what does it mean to have ‘choice’ in one’s sexual orientation?” He asked how gay marriage could be a fundamental right if gay and lesbian relationships only recently received legal protection. And he asked, “Why is legislating based on moral disapproval of homosexuality not tantamount to discrimination?”

In his questions, Walker’s perspective is nuanced and difficult to divine. The document reveals the judge has thought deeply about the complex human and legal elements in the case—and this independent, complex view could yield surprising results in his ruling.

“I think he’s fearless, “ said Judge Charles Breyer, a colleague on the federal court. “I think that he decides cases based on what he thinks is right rather than what somebody else might think is right.”

Perhaps because of that track record of independence, Prop. 8 supporters have made much less of any potential personal bias than one might expect.

The National Organization for Marriage, an opponent of gay marriage rights, took note of the discussions of Walker’s sexuality in a statement released on the day of the closing arguments in the Prop. 8 case. The group, which also published a blog titled, “Got Bias? SF Chronicle Reports Prop 8 Judge Vaughn Walker is Gay,” turned down an interview request.

Andy Pugno, spokesperson for the Prop. 8 defenders, told the Chronicle in February that his side wouldn’t raise the issue in court, and it hasn’t. Pugno and his colleagues declined to be interviewed for this story.

Mormon sociologist and Prop. 8 supporter Armand Mauss said there has been little talk of the subject so far in Mormon blogs and publications.

"Such a revelation would probably not inspire confidence on the part of the Mormon populace,” he wrote in an e-mail. But he noted that “many opponents of Prop. 8 would feel similarly if the judge were a Mormon.”

Legal scholars mostly agree that it isn’t an issue, noting that judges rule all the time on matters that might affect them personally.

Rory Little, a constitutional law professor at UC Hastings, said that asserting that a gay judge has a bias in this case would be akin to saying a female judge could not hear a gender discrimination suit or an African-American judge cannot hear a civil rights case.

“I respect [Walker’s] position, which I think is, ‘It’s not relevant,’” said Little. “I think after you analyze it, that’s exactly right.”

See an interactive timeline on California's legal history on same-sex marriage. Full coverage at our Prop. 8 topic page.