Oh no, the judge is gay
Straight marriage defenders allege "a textbook conflict of interest"
Oh no, the judge is gay
Dick Polman, Inquirer National Political Columnist
Earlier this week, the San Francisco Chronicle reported that the federal judge currently presiding over a potentially landmark gay marriage trial is himself gay. According to the Chronicle, it has long been "the biggest open secret" that Chief U.S. District Judge Vaughn Walker, a 21-year veteran of the federal bench, shares the same sexual orientation as the plaintiffs - who have been arguing in his court for weeks that Proposition 8, the successful '08 California ballot measure banning gay marriage, should be overturned because it unconstitutionally discriminates against gays.
After reading that story, I braced for the inevitable reaction from the religious right. It didn't take long for heads to explode.
The Christian Broadcasting Network put the news on the air in a graphic ("Judge Vaughn Walker is Gay. Conservatives Say: Pro-Gay Bias"). The National Organization for Marriage put the news on its home page, then sought via sleight of hand to link Walker's sexual orientation to his courtroom behavior: "We have no idea whether the (Chronicle) report is true or not. But we do know one really important fact about Judge Walker. He's been an amazingly biased and one-sided force throughout this trial, far more akin to an activist than a neutral referee."
And yesterday, a prominent right-wing litigation group, Liberty Counsel, demanded that Walker, "as an active practitioner of the homosexual lifestyle," remove himself from the case. Matt Barber, the group's "cultural affairs" director, declared: "At worst, Judge Walker's continued involvement with this case presents a textbook conflict of interest." He argued that having a gay judge preside over a gay marriage trial "is no different than having an avid gun collector preside over a Second Amendment case." Therefore, "Any decision favoring plaintiffs in this case will be permanently marred and universally viewed as stemming from Judge Walker's personal biases and alleged lifestyle choices," and his inherent interest in helping "his similarly situated homosexual activist plaintiffs." Therefore, Walker should quit the case, pronto.
So much nonsense is packed into the preceding paragraph that it's hard to know where to begin. For instance, on a minor point, I'd bet the ranch that gun owners have presided over Second Amendment gun-rights cases since time immemorial, without a peep of protest from conservatives. I'd bet that some of those judges, in their private lives, have indeed been avid gun collectors without ever advertising the fact...just as Judge Walker, according to the Chronicle, "has never taken pains to disguise, or advertise, his orientation."
The broader argument, most explicitly insinuated by Liberty Counsel, is that a gay judge is somehow inherently less professional than a straight judge; that a gay judge, by definition, is emotionally compelled to abandon the canons of his job and come to the aid of those who share his "alleged lifestyle choice." This argument must surely be a source of amusement for the gay community, which was ticked off at Walker for years; before he became a Republican appointee - tapped for the federal bench in 1989 by President George H. W. Bush - attorney Walker represented the U.S. Olympic Committee when it successfully sued San Francisco's Gay Olympics for poaching its name. (As Walker himself quipped to the press the other day, "Life is full of irony.")
If one cares to extend the logic of Walker's conservative critics, no black or Hispanic judge should be permitted to preside over a race-discrimination case, no female judge should be allowed to handle a sex-discrimination case, and no Jewish judge should go anywhere near a case involving the placement of a Christmas creche on public property - just to ensure that instinctive emotion doesn't trump the jurisprudential imperative.
But, with respect to the California trial itself, what Walker's critics are really suggesting is that a straight judge - lacking such a "textbook conflict of interest" - would be inherently more credible. In practice, of course, the defenders of traditional marriage have no problem with straight judges who rail against gays in accordance with their own ideological or religious convictions. I don't recall any conservatives getting upset with U.S. Supreme Court Justice Antonin Scalia, who assailed, in a now-famous dissent, "the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct."
Clearly, Walker's conservative critics are trying to pre-spin a trial defeat, by suggesting in advance that if the judge indeed rules Proposition 8 unconstitutional, he was swayed not by the law, but by his "lifestyle." The defenders of traditional marriage need not fear, however. If they lose the trial, they'll surely seek relief from as many as 20 (presumably straight-thinking) judges at the federal court of appeals - and in the highest court of all. No doubt Justice Scalia, as an active practitioner of the man's man duck-hunting-with-Dick-Cheney lifestyle, would weigh in on the gay marriage case without a shred of preconception.
NIGEL: Conse 'Pub Ken Starr, a MAJOR figure during the Clinton years, said that the majority should decide the rights of citizens.— Talvenada- Nigel - you said "And what is stopping people is, indeed, the legality. I don't believe that a marriage from an online "reverend" would count if someone wanted to include his/her partner on an insurance policy or leave him/her a legacy. ".................. Again marriage isn't performed by the government. I married my wife in the Methodist church. Government is involved in it because they want to tax it. I am always amused that people keep going back to the government to find their solution.
- Nigel- you said" I don't believe that a marriage from an online "reverend" would count if someone wanted to include his/her partner on an insurance policy or leave him/her a legacy. And that really is an issue."........................ Last time I checked you could leave your estate to anyone of your choosing. As for insurance there is the pesky problem that no one want to discuss and that is the fact the government won't let the free market rule the insurance agency. Insurance companies have paid multi millions of dollars to politicians to keep the free market out of this industry. If the government were to allow the free market to work you would see a variety of insurance solutions to accomodate almost any need.
- swedesboromike: You are correct, Scott Brown has said (and his website says) that he believes that marriage is between a man and a woman. BUT, he has also said that he would oppose a constitutional ammendment to define marriage as being between a man and a woman, and, more importantly as to his election, that gay marriage is a "settled fact" in Massachussets and that he respects the decision... Regardless of your opinion on the issue, please do not try to pretend that the federal government does not convey any benefits upon marriage. They do.... And finally, I'll use your tort reform argument. If it's really not that big a deal, and goverment shouldn't be involved anyway, then why not just allow it?— still_independent
- SMike, I'm not really educated about all the laws, but my gay friend says she has a problem providing for her partner after her death. Maybe because it's easily contested? I don't know. But she certainly can't be on the same insurance policy. And Mike, I do really believe there need to be laws in place.— NigeltheMastiff
- Nigel: inheritance is one of the big issues. Right now, if a spouse dies, the remaining spouse already owns all of the community property. This is not true of gay couples. There will be probate, inheritance taxes (if the estate is large enough), a will must be made (and can be contested), etc. The insurance thing varies by state by state and company by company. Civil unions are not recognized by HIPAA laws, either, so good luck if one part of a gay couple falls ill.— still_independent
- Still Independent- In my view if you are for low taxes, fiscal responsibility, and national defense the rest of this stuff are just wedge issues that shouldn't qualify or disqualify anyone for elective office. Bob Casey of Pennsylvania is pro life yet he won in the blue state of Pennsy. Scott Brown is for traditional marriage yet he won in Mass. The narratives and depictions that the left spews about people's character for being for life and traditional marriage border on the pathological. What ever happened to respecting ones opinion and views. For me, without common sense fiscal conservatism nothing else matters. Ones views on social issues are not a deciding factor. I think most of this has to do with getting ones life style choice into the textbooks and mainstream culture and has very little to do with marriage, insurance, and wills.
- swedesboromike: you brought up Scott Brown. Of course someone's views should never "disqualify" them from office (although those views may be a reason to vote for or against them). The caricatures of those on the opposite side of any issue, be it pro-choice/pro-life, pro-gay marriage/pro-traditional marriage, or any other wedge issue, are no worse whether promulgated by the right or the left. As far as "I think most of this has to do with getting ones life style choice into the textbooks and mainstream culture and has very little to do with marriage, insurance, and wills.", all I can answer is that as someone who doesn't need to worry about marriage, inheritance, or wills, you probably would think that way... Look, I am for government staying completely out of marriage. Make marriage a solely religious ceremony. Have civil unions for everything else. Just agree to strip away all benefits currently bestowed upon those that are married (or confer them to those under a civil union), and I am fine with it.— still_independent
- swedesboromike: I forgot to add that I only responded to your Scott Brown thing to point out that he was much more moderate on the gay marriage issue than you were trying to portray him as.— still_independent
- SMike: "The narratives and depictions that the left spews about people's character for being for life and traditional marriage border on the pathological." What?????? Have I ever spewed????— NigeltheMastiff
- When the The National Organization for Marriage argues that "Judge Walker ... [has] been an amazingly biased and one-sided force throughout this trial, far more akin to an activist than a neutral referee," is that the group's way of saying Walker is uniquely qualified for a position on the U.S. Supreme Court?— Djoko Pritza
- I believe people here and Polman are missing the point. Supreme Court justices recuse themselves from cases involving corporations in which they hold stock; elected judges recuse theselves from cases involving donors to their campaigns; judges have recused themselves from cases involving clubs/organizations to which they are members; judges should recuse themselves from any case in which it can be perceived they would receive benefit from a decision either way. If this federal judge is gay, and if he could receive some benefit from siding with one side or the other, then he should recuse himself. It has nothing to do with lifestyle, that is just a side issue caused by the nature of the case. So, will this judge possibly benefit from a decision in this case either siding with or against either the plaintiff or defendant? If so, he should recuse himself.— tom - wilmington, de
- Gay partners do have it tough in some instances. Spouses can receive a survivor benefit from their partners pensions and social security, property can pass outside of any estate taxes or probate, medical decisions can be easily made by spouses, spouses cannot be forced to testify against their partners, married couples can file tax returns on a joint basis and possibly get a tax break, and many other examples can be named. Many states are addressing these issues through civil unions that are given all the rights of being married. If this can be done in that manner, then why the hang up on the word "marriage", whether it be a legal or religious ceremony (note to SWMike...I was initially married by the mayor of Hatboro, PA, who was not an ordained clergyman, so government officials do perform marriage ceremonies). IMHO, it is the word "marriage" at which so many who oppose this issue get hung up on, and it is the word "marriage" which so many who support this issue seem intent on obtaining at any and all costs. So what is the big deal over the word marriage if civil unions would afford the same rights and privileges (if you want to call what we get out of being married a privilege).— tom - wilmington, de
- Remember boys and girls, it is not whether any impropriety is being committed, but the perception of impropriety that is important.— tom - wilmington, de
- Swedesboro: I agree. Marriage should be entirely abolished as a legal status. I don't think married couples should be getting tax breaks that I don't get. We would need new laws to govern hospital visitation rights, wills, child custody, etc. however.— p-diddy
Cited by the Columbia Journalism Review as one of the nation's top political reporters, and lauded by the ABC News political website as "one of the finest political journalists of his generation," Dick Polman is a national political columnist at the Philadelphia Inquirer. He is on the full-time faculty at the University of Pennsylvania, as "writer in residence." Dick has been a frequent guest on C-Span, MSNBC, CNN, NPR and the BBC. He covered the 1992, 1996, 2000, and 2004 presidential campaigns.
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