Those on the far right are having apoplexy (e.g., Catholic Online has a piece penned by the loons at Liberty Counsel)following reports that Judge Vaughn Walker (at right) presiding over the federal Proposition 8 trial might - my heavens - be gay. Gays apparently are viewed as being incapable of being unbiased, even though religious nuts like Antonin Scalia are deemed impartial. I'm sorry, but if Walker needs to recuse himself, then the precedent would cause chaos in the judicial system as a judge's beliefs/background make him or her incapable of handing out a fair decision. Indeed, I ought to get a new trial in' my divorce if Walker must recuse himself - didn't I deserve a judge who wasn't a conservative Catholic who believes being gay is a choice? Walker's opponents truly need to think long and hard at what they could be unleashing if they keep up their calls. Since the majority of Justices on the U.S. Supreme Court are Catholics, are they all disqualified to hear cases involving the Catholic Church or religious issues in general? They are if the reasoning now being applied to Walker is utilized consistently. Ruth Marcus has a column in the Washington Post that looks at why Walker should NOT recuse himself. Here are some highlights:*
You're seeing a lot of question marks so far because this one is more difficult than it first appears. My instant reaction was that Walker ought to be free to hear the case. That remains my bottom line, but not without some squirming. No one would question an African-American judge's capacity to preside over a race discrimination lawsuit or a female jurist's handling of a sexual harassment case. In the Proposition 8 matter, a straight judge would bring his own preconceptions to the courtroom, and no one would challenge his impartiality.
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But I've argued against the notion of judges as impartial umpires mechanically calling balls and strikes, as Chief Justice John Roberts memorably put it. In many cases, a judge's background and life experiences inevitably come into play, especially in deciding the meaning of the grand phrases of the Constitution.
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So when Walker considers claims that the ban on same-sex marriage violates the constitutional guarantees of equal protection and due process of law, it's hard to imagine that his sexuality, if he is gay, does not influence his decision-making -- just as the experience of having gay friends or relatives would affect a straight judge. Justice Lewis F. Powell Jr., who cast the deciding vote in favor of upholding Georgia's criminal ban on gay sex, famously told his colleagues, including a gay clerk, that he had never met a homosexual.
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Walker was randomly assigned to hear the Proposition 8 case. In uncomfortable circumstances, he made the right choice to remain. The alternative would invite too many challenges to judicial fairness -- Jewish judges hearing cases about Christmas displays, or judges who once represented unions or management presiding over labor disputes.
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In this case, I hope the plaintiffs win and that Walker rules that the same-sex marriage ban violates their constitutional rights. At the same time, I've got to acknowledge: If I were on the side supporting the ban and found it struck down by a supposedly gay judge, I'd have some questions about whether the judicial deck had been stacked from the start.
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The irony is that it is typically LGBT litigants who have the judicial deck stacked against them - often due to the efforts of folks at organizations like Liberty Counsel and their supporters. Perhaps it is a bit of Divine justice that the homophobes get a taste of their own medicine. Let them wonder for a change whether or not they got a fair shake.
You're seeing a lot of question marks so far because this one is more difficult than it first appears. My instant reaction was that Walker ought to be free to hear the case. That remains my bottom line, but not without some squirming. No one would question an African-American judge's capacity to preside over a race discrimination lawsuit or a female jurist's handling of a sexual harassment case. In the Proposition 8 matter, a straight judge would bring his own preconceptions to the courtroom, and no one would challenge his impartiality.
*
But I've argued against the notion of judges as impartial umpires mechanically calling balls and strikes, as Chief Justice John Roberts memorably put it. In many cases, a judge's background and life experiences inevitably come into play, especially in deciding the meaning of the grand phrases of the Constitution.
*
So when Walker considers claims that the ban on same-sex marriage violates the constitutional guarantees of equal protection and due process of law, it's hard to imagine that his sexuality, if he is gay, does not influence his decision-making -- just as the experience of having gay friends or relatives would affect a straight judge. Justice Lewis F. Powell Jr., who cast the deciding vote in favor of upholding Georgia's criminal ban on gay sex, famously told his colleagues, including a gay clerk, that he had never met a homosexual.
*
Walker was randomly assigned to hear the Proposition 8 case. In uncomfortable circumstances, he made the right choice to remain. The alternative would invite too many challenges to judicial fairness -- Jewish judges hearing cases about Christmas displays, or judges who once represented unions or management presiding over labor disputes.
*
In this case, I hope the plaintiffs win and that Walker rules that the same-sex marriage ban violates their constitutional rights. At the same time, I've got to acknowledge: If I were on the side supporting the ban and found it struck down by a supposedly gay judge, I'd have some questions about whether the judicial deck had been stacked from the start.
*
The irony is that it is typically LGBT litigants who have the judicial deck stacked against them - often due to the efforts of folks at organizations like Liberty Counsel and their supporters. Perhaps it is a bit of Divine justice that the homophobes get a taste of their own medicine. Let them wonder for a change whether or not they got a fair shake.
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