Wednesday, April 27, 2011

Should a gay judge rule on gay marriage?

Perry vs. Schwarzenegger was the recent California Supreme Court case to decide the constitutionality of the hotly debated "Proposition 8" - a piece of legislation outlawing gay marriage in the state.

After days of heated argument, ruling Judge Vaughn Walker decided that Proposition 8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and overturned the law - allowing gay marriage once again.

Or, at least, he did in theory - because opponents of gay marriage filed for appeal, which is still waiting to be heard, and until that's decided the issue is still up in the air.

Complicating the fact is Judge Walker's recent admission of something people have suspected for some time - that he, himself, is gay. He announced that he had been in a happy, committed, same-sex relationship for the past ten years.

Unsurprisingly, opponents of gay marriage have leaped on this as proof that Walker's ruling was biased and self-serving.

"Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case," lawyers supporting Proposition 8 argued.

At first glance, this seems to be a valid argument - how can somebody truly issue an impartial ruling if they themselves are directly affected by it? Perhaps Judge Walker should have removed himself from the case due to a "conflict of interest."

But the more I thought about it, the more I realized that this was a fairly short-sighted attitude to take. After all, does that logic mean an African-American judge isn't qualified to give a ruling in a case involving civil rights? Or a female judge is unqualified to issue judgment in a case involving alleged sexual discrimination?

You could even argue that if Judge Walker was inherently biased in support of same-sex marriage because he was gay, that would mean a straight judge would be inherently against the notion of gay marriage. It seems the underlying logic behind such thinking is that no judgement is legally sound unless it's issued by a white, male, heterosexual judge - which is kind of backward thinking whichever way you cut it.

What do you think about the issue. Should Judge Walker have excused himself and let a straight judge make the ruling? Does his admission help or hinder opponents of same-sex marriage?

1 comment:

treena-ivy-carter said...

Some people could say that as a gay-judge it would be biased...
I ain't one of them.

I like how you always put my thoughts into words unlike my mind-pictures and emotions.

Thumbs up!