Irony alert: The CA gay marriage trial judge is gay

Last weekend, the San Francisco Chronicle revealed that Judge Vaughn Walker, the federal district court judge presiding over the case seeking to overturn California's gay marriage ban (Prop. 8), is himself gay. And to think that at the beginning of the trial there was a lot of hand-wringing by pro-same-sex marriage commentators over whether Judge Walker might be instinctively anti-gay. Well, now we know.

Judge Walker represents a kind of quiet progress for gay Americans. He "has never taken pains to disguise - or advertise - his orientation," according a source quoted in the Chronicle.  In fact, the article outing him is entitled "Judge being gay a nonissue during Prop. 8 trial," and that's the way it should be (except for the typo in the headline.)

Judge Walker's politics do not make him an obvious candidate for an LGBT role-model: He was appointed to the bench by George H.W. Bush and is a "a conservative with libertarian sympathies," according to the New Yorker. His politics and mine are probably very different but the point here is that he can be both a conservative-leaning federal judge and a gay man, and each side of the equation is balanced. (For the record, I don't buy into the conservative/liberal binary in politics but that's an issue for another time.) The success of someone like Judge Walker is the best way of undercutting the pernicious argument that a person belonging to a minority will trample on the rights of the majority in order to advance his/her group's interests (the "activist judges" meme that Republicans especially are so fond of).

Now of course there is a place for activism and everyone should enjoy a good gay pride parade once a year, but nowhere in Judge Walker's written opinion on the Prop. 8 trial will his sexual orientation be obvious. However, what will be evident--and this is the strongest argument for why institutions like legislatures and courts should have plenty of minority members--is a deep consideration for the issues that only firsthand experience could bring.

Now this is not to say that the final judgment will be different than if he were straight but merely that there is a higher chance that the salient issues will be examined more comprehensively. In the confirmation hearings for Sonia Sotomayor's appointment to the US Supreme Court, it became an obsession for a number of old White wealthy male senators that because Sotomayor was a Latina she would inevitably be biased. Judges should not be biased, they argued (correctly), but their reasoning was ludicrous: In saying that judges should have a "view from nowhere" they did not realize that what they believed to be a neutral perspective was actually marked as old, White, wealthy and male. Having Sotomayor on the court is important not because she will always rule in favor of other Latinas (the nightmare scenario for these senators) but because her life experience will lead her to think about issues involving women of color more holistically than her White male colleagues could. That kind of due consideration is very important so that an institution is not biased whether for or against the majority.

Needless to say, the anti-same-sex marriage side doesn't buy my argument about life experience. Prop8trialtracker.com noted the predictable responses: Andrew Pugno, a pro-Prop. 8 lawyer who is close to the trial, responded by implying bias but without actually making an accusation. Of course, one does not want to accuse the judge presiding over your case a bigot until he has actually made his decision. The director of the National Association for Marriage went ahead and ripped into the judge (no surprise there).

It is right that judges recuse themselves when there is a conflict of interest (and for the record, Judge Walker did not choose to hear the case but rather it was randomly assigned to him), but identity should not be a factor in considering whether something is a conflict of interest. Following the logic that a gay man cannot be trusted to rule on a technical gay rights case, no judge who has ever had a divorce should be able to try a divorce case, no judge with a child could try a custody case, and so on.