Oh no, the judge is gay



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.