Judge and media navigate claims of gay bias

@font-face {“Cambria”;
}@font-face {“Swift-Light”;
}p.MsoNormal, li.MsoNormal, div.MsoNormal { margin: 0in 0in 10pt; font-size: 12pt;”Times New Roman”; }span.BodyCopy { }div.Section1 { page: Section1; }

Everyone has an opinion on gay rights — and this fall it is clear that it is becoming a problem for the law and the media.

How can a judge deliver a ruling on gay marriage, “don’t ask, don’t tell” or other policies when he or she is either gay or not? How can journalists, who have sexualities too, write about the issue?

Same-sex marriage opponents complained that U.S. District Judge Vaughn Walker — who this summer overturned Proposition 8, a 2008 state constitutional amendment banning the practice — should have recused himself because he is gay (a suggestion Walker has declined to discuss). Walker’s sexual orientation will be front and center in arguments before the Ninth Circuit Court of Appeals on Monday.

In the latest development in the appeal,  Proposition 8 supporters this week asked appeals court judge Stephen Reinhardt to disqualify himself from hearing the case because his wife is active in the American Civil Liberties Union. He rejected that request. The ACLU is not a party in the case.

This puts journalists, too, in a funny position. Who will believe a gay reporter covering the question about whether a gay judge should be disqualified?

“I think if you disclose your bias, disclose the fact that you’re personally impacted by this, then I think it’s OK,” said Scott James, a gay reporter who writes a column for The New York Times and The Bay Citizen. “I’m a huge believer in transparency.”

In August, James wrote a personal narrative “So Close … But Not Today,” on his experience of becoming part of the story while waiting in line to get married just after Walker nixed Proposition 8. No same-sex marriages took place, because Walker filed a temporary stay just minutes after filing his ruling.

But that was not the case in 2004, when San Francisco Chronicle reporter Rachel Gordon and photographer Liz Mangelsdorf were taken off the same-sex marriage beat after marrying each other during a brief window of opportunity as Mayor Gavin Newsom announced he would allow marriages. Chronicle editors feared the appearance of a conflict of interest.

Kelly McBride, who teaches journalism ethics at the Poynter Institute, a nonprofit journalism school in St. Petersburg, Fla., questioned the decision, saying bias goes beyond identity. “Yes, journalists should avoid becoming part of the story,” McBride wrote in an e-mail. “But when newsrooms worry only about the most evident conflicts, we sew a flimsy safety net.”

McBride said assigning a gay journalist to a story on sexuality could provide a more complete perspective: “Gay and lesbian journalists bring acuity to stories about same-sex marriage that comes from living life on the outside.”

Luck of the draw

The Northern District Federal Court selected Walker, the district’s chief judge, via lottery assignment from its pool of jurists to oversee Perry vs. Schwarzenegger, the case in which four same-sex plaintiffs sought to marry.

The Alliance Defense Fund, a religious nonprofit led by Charles Cooper, said in its opening brief before the appeals court that Walker delivered a biased ruling. But it did not link the alleged bias to Walker’s sexuality, nor did it make that the focus of its appeal.

Walker’s purported orientation entered the court record on Sept. 29, when Robert Wooten, an unaffiliated private citizen, applied to file an amicus brief calling for the appeals court to weigh Walker’s sexual orientation when reviewing his ruling.

Meanwhile, the National Organization for Marriage, a New Jersey-based nonprofit, launched a $1.5 million campaign to run television ads, organize bus tours and collect signatures to proclaim Walker’s bias as a gay man. The organization also released several TV ads, including one just shortly after the ruling that called Walker “a gay San Francisco federal judge” and blasted what it termed “San Francisco values.” Walker’s ruling applied only to California, though it will doubtless influence other courts’ decisions around the nation.

In an op-ed piece in the San Francisco Chronicle, Maggie Gallagher, the organization’s chairwoman, wrote, “Judge Walker is off-base: Same-sex marriage is not a civil right, it is a civil wrong. The Supreme Court and Congress will reject his biased view.”

Activist or journalist?

Gallagher is also a conservative syndicated columnist who is no stranger to conflicts of interest. In 2005 she apologized for not disclosing that she had a $21,500 contract with the Department of Health and Human Services to promote President George W. Bush’s $300 million pro-marriage initiative through a magazine article, brochures and briefings for government officials. Asked by the Washington Post whether she violated journalistic ethics, Gallagher initially replied, “Frankly, it never occurred to me.”

Journalist Matt Baume (a contributor to many local publications including the Public Press, where he has written about development issues) is in his spare time a gay-rights activist. The creator of the website Stop8.org, Baume countered claims made in the National Organization for Marriage’s commercials with his own video on YouTube. Baume decried the references to Walker’s sexuality, pointing out that Walker has neither confirmed nor denied being homosexual.

The assertion first surfaced in a column by San Francisco Chronicle political reporters Phil Matier and Andy Ross in February. Salon.com cited a lack of evidence regarding the judge’s orientation, but included a photo of Walker eating lunch with a male companion.

Does the photo prove that Walker is gay? James, the Times columnist, said that eating lunch in San Francisco’s Castro District reveals only an appreciation for fine dining. On the other hand, he said of the Matier and Ross item, “I can’t imagine that they were cavalier about reporting that.”

A version of this article was published in the fall 2010 edition of the San Francisco Public Press newspaper. Read select stories online, or buy a copy.