Does it matter that the judge in the California case on whether the state’s ban on same-sex marriage is constitutional is gay?
The San Francisco Chronicle has “outed” U.S. District Court Judge Vaughn Walker.
Many gay politicians in San Francisco and lawyers who have had dealings with Walker say the 65-year-old jurist, appointed to the bench by President George H.W. Bush in 1989, has never taken pains to disguise – or advertise – his orientation.
They also don’t believe it will influence how he rules on the case he’s now hearing – whether Proposition 8, the 2008 ballot measure approved by state voters to ban same-sex marriage, unconstitutionally discriminates against gays and lesbians.
The blog, Above the Law, concurs mostly. If this were the 1860s and the civil rights case was about slavery, there wouldn’t be a question of whether a black judge could rule impartially, would there?
Some commenters at the site disagree:
“The judge is gay? That’s a lose-lose situation for the gay marriage people. If he rules it unconstitutional, opponents will say it’s a biased outcome. If he rules it constitutional, opponents will say ‘even a gay judge doesn’t think your position is valid.'”
But there’s also a pragmatic response. The case, no matter how the judge rules, is going to end up being decided for good in some other court higher up the judicial food chain.