Judging while gay


Last week, the San Francisco Chronicle published a column discussing the “biggest open secret” in the same-sex marriage trial in California: The presiding judge is gay.

Since then, some conservative groups have demanded that he recuse himself, citing personal bias and “alleged lifestyle choices.”

Fortunately, it appears that Judge Vaughn Walker has no intention of doing so.

Those calling for Walker to recuse himself are missing several key points in this case — and in the way the American judicial system works.

In this particular case — a challenge of the same-sex marriage ban passed by referendum in 2008 in California — any decision by the judge is going to be appealed. (Of course, appeals are supposed to be based on a belief that there were errors made in the case, not just that the loser didn’t like the outcome, but that’s another discussion.)

A judge recuses him or herself when the case under consideration presents a conflict of interest or the appearance of a conflict.

For instance, a judge would recuse herself from hearing a case in which she was a lawyer for the defendant earlier in her career.

But the demand that Walker recuse himself isn’t logical. If it were, heterosexual judges also couldn’t hear cases about marriage equality because it involves testimony about heterosexual marriage. (And what if the heterosexual judge is married as well?)

If this logic held, you could ask women judges to recuse themselves from cases involving sexual harassment or ask African-American or Jewish judges to recuse themselves from cases involving discrimination against their respective group. Just because a judge shares a characteristic with a plaintiff or defendant doesn’t mean he or she will automatically rule in their favor.

In contrast, some gay groups are concerned Walker will find the ban is constitutional as a result of “overcompensating.” After all, many still haven’t forgiven him for representing the U.S. Olympics in a brand-infringement case with San Francisco’s Gay Olympics when he was a private attorney. And he was appointed to the bench by President George H.W. Bush.

It’s generally held that a judge’s life experience and personal history contributes to his or her ability to assess the real-world impact of laws and court decisions, to determine how a law impacts people in their daily lives and understand the subtleties involved.

And Walker’s job as a judge is to interpret the law as it is written, not as he would like it to be or what he believes is just or right.