Two weeks ago, former federal district judge Vaughn Walker, who ruled last summer in Perry v. Schwarzenegger that California’s Proposition 8 is unconstitutional, publicly disclosed for the first time that he has been in a same-sex relationship for the past ten years. A straightforward application of the judicial ethics rules compels the conclusion that Walker should have recused himself from taking part in the Perry case. Further, under well-established Supreme Court precedent, the remedy of vacating Walker’s judgment is timely and necessary.As a practical matter, I'm unsure if Whelan's thinking will carry the day. As a broader matter, I find it discomfitting: Would we ask an African-American judge to step aside in a race discrimination case? A female judge to step aside in a sex discrimination case? Not automatically, no. There is a suggestion in Whelan's argument—a spirit that pervades Prop 8 itself—that gay Americans cannot be full citizens with the full rights and duties of citizenship. The only impartial, qualified judge is, well, a heterosexual judge.
But is that really the case? Remember that one of the key arguments made by Prop 8 supporters was that gay marriages threaten straight marriages. Judge Walker cited such arguments in his ruling last year, quoting from the California voter education guide:
The foundation of Prop 8, in other words, is not that gay marriage should be prohibited for any old reason—but because it threatens to undermine female-male marriages.
Seems to me then, that any judge who is married or has been married or who might want to be married someday—be they gay or straight—thus finds him- or herself possibly compromised in this matter. Who is to say a straight judge wouldn't be acting to protect his or her marriage from the destabilizing influence of gay unions? The only person capable of passing a good judgement would be a demonstrably asexual judge—and while that's not impossible to imagine, let's just concede it's unlikely. There's nobody who can escape the appearance of a conflict of interest here if Whelan's logic is being applied to everybody. Otherwise, "straight white male" is the default standard of impartiality; everybody else is just an interest group, compromised by their biases.