When a judge is gay

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.

  • Alison

    Would it matter if he were a Southern Baptist? A Mormon?

  • Ben Chorn

    Were there women judges around for their right to vote? African-Americans?

  • Jon

    And if he were straight would we be hearing the same argument about how his personal sexual orientation creates a conflict of interest?

  • BAsil

    Would it matter if the Judge in a predator case was a NAMBLA member? Interesting rhetoric, comparing slavery and racial oppression to a condition that still seems to be largely envirionmentally driven and without genetic evidence. Toss in the same rhetorical device in another context, and we have a thought crime. We have rights to free speech in this country, chillingly, not free thought.

  • pbo

    Of course it matters, but it is no different than when a practically all white male supreme court regularly rule on female or race issues. There’s only so much impartiality a person can muster.

  • Al

    Would it matter if the judge has a friend or family member who is gay? Considering the estimates are about 10% of the population, that seems a pretty safe bet no matter who the judge is.

  • Alison

    \\largely envirionmentally driven and without genetic evidence

    Does your heterosexuality really not exist? Is that a figment of your imagination, Basil?

  • Heather

    Basil, how exactly is homosexuality

    “environmentally driven”? It seems to me that a national environment that can be very hostile to gays — in ways ranging from homophobic attitudes like yours to the threat of outright violence — would actually discourage homosexuality if that were the case. Choice might come into play in terms of how OPEN a gay person is comfortable being, or perhaps in where they decide to live, but not in terms of why they’re actually gay. Did you wake up one morning and decide to be straight?

    Also? Homosexuality and pedophilia are not the same thing. Just for the record.

  • Erich

    The only reason that it matters is because it gives the Prop 8 supporters a boogeyman to blame if they lose.

  • Jeff in Blaine

    Since he was given the case by random among all the judges who could have received it, it seems to me that it proves gays are an integral part of our society and should be afforded the same rights and protections the rest of us have.

  • George

    The judge, if he has any integrity at all, should decline the case; he’d know the public would be complaining of bias and prejudice.