So now the supporters of California’s Proposition 8 (it overturned gay marriage), are complaining that the ruling that overturned it last year should be thrown out because the judge who made the ruling, Vaughn Walker, is gay. They are treating this as though it is something he concealed (though I could swear I knew about it last year when the ruling is made, but I can’t find any proof of it), and that he should have recused himself since he had a vested interest in the outcome of the case.
Well, ok, let’s think about this for a moment. On the surface they appear to have a legitimate complaint. He is gay and in a relationship, the case is about gay relationships, therefore he shouldn’t have been involved. Now I don’t agree with this, but that’s fine. Let’s pretend this is a valid point. So let’s assume then that the judge who would have taken up the case instead was a married straight judge.
But the problem is that wouldn’t work either. The anti-gay marriage people like to talk about how gay marriage is a “threat” to straight marriage. Therefore a straight person wouldn’t be allowed to preside over the case either, right? I mean, they’d obviously have a vested interest, too, perhaps even more so. After all, if gay marriage is a threat to straight marriage, then a married straight judge could find their marriage falling apart if gay marriage were allowed. Clearly they’d have an interest and so couldn’t be allowed to preside over the case. I’m sure the Prop 8 supporters would agree with that position, right? Right?
The real problem here is that we can’t always expect judges to step aside just because they might have a personal interest in the outcome. There’s some cases where clearly we should expect them to, like if it’s a judge who owns 20% of a company that’s appearing as a defendant in her court, or if one of the people in a case is a friend or family member of the judge. But something like sexual orientation? No. That’s like saying no black judges can preside over a civil rights case. Or that no female judges can preside over a sex discrimination case. Or that religious judges should be barred from any case where religion is an issue.
Actually that last one is kind of tempting…
But as you can see this is a very slippery slope. I’m sure the courts will throw out this complaint because they will be loathe to allow a precedent like this, and well they should be. This is not something that had a bearing on the case, and we really don’t want it to affect future court cases down the road.