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Prop 8 and Judge Vaughn Walker: Gay judges are automatically unqualified

Ed Whelan makes the case in National Review that Judge Vaughn Walker's decision overturning Prop 8 in California be set aside because Walker has recently come out of the closet and thus can't be considered impartial:
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.


namefromthepast said…
Any bill/law that does something other than protect life, liberty or private property is a perversion of the law.

I agree with you that Walker(nor the voter)is no more or less qualified in matters concerning the social patterns of anyone else.

Embracing the lethal force of government when it suits the majority's social fancy is tyranny at its finest.

This law/bill is no more or less offensive than any other social remedy proposed by either political party.

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