Judge Vaughn Walker had not even handed down his decision in Perry v. Schwarzenegger when the conservative backlash began. Hours before Judge Walker’s decision became public, FoxNews.com ran an editorial by Notre Dame Law Professor Gerard Bradley in which Bradley accuses Judge Walker of letting his personal life (credible sources have reported that Judge Walker is, himself, gay) cloud his judgment in the case.
In the editorial, Bradley writes: “I do not doubt that Judge Walker made up his mind about Prop 8 before the trial began.” Specifically, Bradley points to reports that Judge Walker is involved in a stable relationship, and not so subtly wonders whether Judge Walker may himself want to be married.
The editorial, which Fox News displayed prominently on its website with all of its “news coverage” of the Prop 8 decision, rubbed some the wrong way. And not just liberals. When I spoke with Margaret Hoover, a frequent guest on Fox News herself, Hoover ripped into Professor Bradley’s pontifications:
Bradley’s notion that Judge Walker decided the case before the trial is cynical conjecture. He offers no evidence for why Walker supposedly decided the case before trial, but alludes to rumors of his homosexuality, allowing his reader to infer that Walker couldn’t possibly decide the case fairly because he’s likely gay… For his certainty of Walker’s lack of integrity in deciding this case, Walker provides a rather long list of ‘buts’.
Hoover continued, observing that:
The facts are that Judge Walker has a spotless reputation as a federal judge. He’s never made any comments, publicly or privately that have been reported or through hearsay, anywhere that suggest he might be unfit to rule in this case….for fun, readers should note that Walker was first appointed to the federal bench by Reagan, then reappointed by George H.W. Bush, because Ted Kennedy and liberals in the Senate blocked his nomination. It took none other than Strom Thurmond, standing beside him through the nomination process, to force his vote through the Senate.
Ms. Hoover also raised the issue of timing. Why, she wonders, when the trial was argued way back in January, did Professor Bradley not raise his objections then:
Having put forth no evidence, and suggesting only disappointment that the media didn’t talk about Walker’s fitness to rule in this case sooner, I can’t help but wonder why Bradley failed to raise this grave concern before today. If this was a ‘conversation worth having’ why did Bradley himself not raise it sooner?
Hoover concluded by flat out questioning the professor’s motives:
It seems that Bradley’s postulating intends only to cultivate uncertainty with today’s ruling probably amongst religious communities like the one from which he hails, by flirting with some of the most cynical instincts in politics: to discredit upstanding individuals in positions of influence through hearsay and smearing, at any cost.
But while much of the conservative world is busy trying to calculate just how much outrage to feign, at least two groups, the Log Cabin Republicans and GOProud, seemed to be temporarily satisfied with the outcome. LCR’s Executive Director, R. Clarke Cooper, noted that “the ruling in Perry v. Schwarzenegger, which secures the freedom to marry for all, speaks to the power of making a conservative case for equality.”
GOProud struck a different tone, but still expressed satisfaction with the decision. In an email, GOProud executive director Jimmy LaSalvia told FrumForum that:
As long as the government is in the marriage business it should treat gay couples as equal to their straight counter-parts. Accordingly, we are pleased with the outcome of the Prop 8 case.
That said, LaSalvia qualified his satisfaction by noting that “As conservatives, however, we continue to have reservations about using the courts to achieve these ends.”
Whatever you take away from the decision, the legal challenge to gay marriage threatens to split the party in half, with its libertarian wing supporting the freedom to marry and social conservatives crying foul. As Margaret Hoover aptly predicted, the two groups will react to today’s decision in very different ways. “Libertarian conservatives who prize individual liberty and freedom will applaud it, social conservatives will resent it.”