A victory over bigotry

    It’s always good news when the bigots lose.Some of them have been assailing the federal judge who famously struck down California’s ban on gay marriage. Vaughn Walker, chief judge of the U.S. District Court in San Francisco (and a Republican appointee), ruled last August that the ban was unconstitutional and that gays should have the right to marry, but the bigots didn’t go quietly. They insisted that the historic ruling wasn’t legit. They had heard rumors that Walker himself was gay – in their words, he was “an active practitioner of the homosexual lifestyle” – and therefore, they argued, he should not have taken the case in the first place. Then, on April 6, the newly-retired Walker confirmed in a newspaper interview that he was indeed gay, and that he has lived for 10 years with a male physician. In response, gay marriage foes went back to federal court. For the last six weeks, they’ve been arguing that Walker’s ruling should be thrown out, that in essence his gayness was, by definition, an unethical conflict of interest.By all accounts, this argument broke new ground. Apparently it was the first time that a federal judge’s sexual orientation has prompted questions about impartiality and calls for disqualification. The gay marriage foes basically argued, in their April 25 court motion, that because Walker was living with another guy, and that because he might have an interest in getting married, his decision in favor of gay marriage was therefore inherently biased. (Their argument was a clever sleight of hand. They insisted that Walker’s gay orientation wasn’t the problem; the issue was that, because he had a gay relationship, he therefore had “an interest in the outcome” of the case.)But the bigots lost their bid yesterday, rightly so. James Ware, the new chief judge of the U.S. District Court (another Republican appointee), stood up for Walker and tartly observed, “The presumption that ‘all people in same-sex relationships think alike’ is an unreasonable presumption, and one which has no place in legal reasoning.” Moreover, the presumption that Walker’s gay relationship “rendered him incapable of making an impartial decision is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief.”The latter sentence is significant. The attack on Walker was a thematic throwback to the ’60s and ’70s, when bigots went to court and sought to have black and female judges disqualified, insisting that blacks were inherently biased because they were black (and therefore, they shouldn’t be allowed to handle civil rights cases), and that females were inherently biased because they were female (and therefore, they shouldn’t be allowed to take gender discrimination cases). The insinuation, of course, was that these judges, by dint of their race and gender, could not possibly be as impartial and professional as white male judges.But, as Judge Ware pointed out in his opinion yesterday, court rulings over the past 40 years have made it clear that a judge’s race or gender, by itself, is insufficient grounds for removal. It’s not enough, said Ware, to complain that a judge is “a general member of the public or a large community.” Citing the various key rulings, “the fact that a federal judge happens to share the same circumstances or characteristic…is not a basis for disqualifying the judge.” Ware saw no reason to generalize about gay judges, either, or to presume that their sexual orientation is automatically a curb on their professionalism. The bigots essentially argued that Walker’s gay marriage ruling was a byproduct of his so-called inherent desire to impose a so-called homosexual agenda (and perhaps take advantage of a gay-marriage climate by getting married himself, although their court motion cited no evidence that Walker and his partner have ever sought to get married). In truth, however, Walker’s gay marriage ruling was heavily grounded in the gay-equality arguments long articulated by Reagan high court appointee Anthony Kennedy. Who happens to be straight.But let’s set aside all the legalese. The inherent absurdity of the bigots’ position was obvious. If it was wrong for a gay judge to take the California gay marriage case, then, by their own logic, it was also wrong for a straight judge to take it. After all, they argued last year that gay betrothals would ultimately destroy the traditional institution of heterosexual marriage. Surely that argument should have compelled a straight, married judge to disqualify himself – given the fact that such a judge would have a general interest in protecting the threatened institution. Right?Wrong. As the gay marriage foes see it, straight judges are inherently impartial, whereas gay judges have an inherent “agenda” – just as black and female judges were derided decades ago. But since then we’ve made great strides against bigotry, and the ruling yesterday is another step forward.

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