OC's Top Law School Deans Spar Over Prop 8

OC's Top Law School Deans Spar Over Prop 8
Mary Bell/ OC Weekly

The culture clash sparked by Proposition 8 places a premium on sound legal interpretation and commentary.

Two of Orange County's preeminent legal scholars are attracting considerable attention from local and national media outlets alike, from CNN to the Weekly. Mirroring the California public at large, the pair reflects the stark divides in perspective over the same-sex marriage debate.

Even on the top of Orange County's ivory towers, common ground is in short supply.

Dr. John C. Eastman, former dean of the Chapman University School of Law and director of the Center for Constitutional Jurisprudence, offers acerbic and pointed criticism of Judge Vaughn R. Walker's legal rational. Notably, Eastman thinks the courts should have dismissed Walker before the case began.

Dr. Eastman's reasoning is straight-forward: Judge Walker is not straight.

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​"I do think the fact that he's had a long-term relationship with another man may disqualify him," Eastman said. "He had a financial or other interest in the outcome of the litigation [by being able to marry]."

According to Eastman, Walker should have clearly presented his orientation at the onset of the case, thereby enabling lawyers to "decide whether or not to waive the potential disqualifying concern."

"This is a rather serious matter," Eastman added.

UCI School of Law Founding Dean Erwin Chemerinsky, OC's other top legal mind, finds Eastman's objections to Judge Walker's sexuality preposterous.

"John Eastman is my friend, I saw him yesterday, but John Eastman should be ashamed for saying that," Chemerinsky asserted, "and you can quote me on that."

When hearing about Eastman's comments, Chemerinsky's irritation was palpable. The phrase "that's just ridiculous!" was used multiple times in reference to Dr. Eastman's reasoning about Walker's likelihood to benefit from the case.

"I find that insensitive and nonsense," Chemerinsky added.

​"You would never say that a woman couldn't hear a sex-discrimination case. We never say that a black judge can't hear a civil rights case. Vaughn Walker's sexual orientation is private and is none of anyone's business. . . . There's no indication that he's going to benefit in any way."

Desperate for any shred of a legal loophole, it's likely that proponents of Proposition 8 will likely attempt to exploit Judge Walker's sexuality as a means to prove that he was indeed biased.

Dr. Eastman mentioned the rumor that Judge Walker would attend large conferences with his long-term partner. Eastman advises that Prop. 8 supporters "conduct an investigation," then file a motion for disqualification.

But Chapman's legal star's qualms don't end with Judge Walker's potential gay motives. He finds numerous flaws in the legal reasoning.

"It would be hard to distinguish a two person same-sex marriage from a three-person marriage. . . . [It] probably will not sustain strict scrutiny [in the courts]," said Eastman. "There's a very important slippery slope."

Regardless of his colleague crying foul, UCI Anteater Chemerinsky has simple advice for marriage equality advocates.

"Keep doing what they're doing. They've presented a very strong legal challenge," he said.

One bit the two academics can concur on: we're nowhere near done hearing about Prop 8, the single most expensive campaign on a social issue in American history.

Click here to read the Weekly's most recent updates on Proposition 8.

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