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So what if he's gay?

The predictable conservative attacks on the judge who ruled for gay marriage

It was inevitable that the historic federal court ruling in favor of gay marriage - detailed here yesterday - would infuriate cultural conservatives. The attacks began scant minutes after Judge Vaughn Walker released his decision, and, while some were merely hilarious (thrice-married Newt Gingrich championing the sanctity of opposite-sex marriage), one particularly fatuous argument has taken hold among the dimmest denizens of the right:

The ruling is a travesty of justice because Walker himself is reportedly gay - and because he's gay, he should've removed himself from the case!

I wrote here in February that this talking point would surface down the road, only because it was so obvious. At the time, the San Francisco Chronicle had just reported that Walker's sexual orientation, which he had never advertised, was nonetheless "an open secret." A few conservative outlets, such as the Christian Broadcasting Network, promptly circulated the story, and a few demanded that Walker should therefore quit the case, citing his "textbook conflict of interest."

There the matter rested. But two afternoons ago, after Walker concluded in his fact-packed ruling that the California ban on gay marriage violated the U.S. Constitution's equal-protection and due-process guarantees, I began the countdown. Three, two, one...

The American Family Association said, "It's also extremely problematic that Judge Walker is a practicing homosexual himself. He should have recused himself from this case, because his judgment is clearly compromised by his own sexual proclivity."

The National Organization for Marriage said, "Here we have an openly gay (according to the San Francisco Chronicle) federal judge substituting his views for those of the American people and the Founding Fathers..."

The Powerline blog lamented that "a gay federal judge in San Francisco, relying on the opinions of mostly-gay 'expert' witnesses" had predictably ruled for gay marriage.

Pat Buchanan said of the judge's ruling, "He happened to be gay. That might have had something to do with it."

But if any of these critics (and others) had bothered to think through the implications of what they were saying - and naturally they didn't, since our world today demands instant response, whereas thinking typically requires an expenditure of minutes - they would have realized the intrinsic fallacies in their complaint.

If a judge who happens to be gay has no business presiding over a gay discrimination case, then no black or Hispanic judge should be allowed to take a race-discrimination case, no female judge should take a gender-discrimination case, and no Jewish judge should take a religious freedom case (for instance, involving the placement of a Christmas creche on public property). If we are supposed to assume that a gay judge, by definition, would automatically abandon his legal scholarship and instead be guided only by his emotions in a case involving gays, then surely black, Hispanic, female, and Jewish judges should also recuse themselves from any cases involving their own kind. And surely white judges should recuse themselves from any race-discrimination cases in which whites are defendants or plaintiffs.

What the most fatuous conservatives are really claiming, in the California gay marriage case, is that only a straight judge had the qualifications to rule wisely - supposedly because a straight judge had no "conflict of interest," no personal stake in the outcome of the case. Wrong again, on the facts. In the federal trial, the opponents of gay marriage specifically contended that straights did have a stake in the outcome; that if gay marriage was permitted, straight children and the institution of marriage itself would be endangered. That was the core of the conservatives' argument at trial. So, under those circumstances, shouldn't a straight judge be forced to recuse himself as well, given his inherent conflict of interest?

Or go back in time, to 1896, when seven white high court judges upheld segregation in the notorious Plessy v. Ferguson case. Perhaps they all should have disqualified themselves as well, since, as white people of their era, they had a direct stake in perpetuating white supremacy?

Maybe we should suspend all federal court cases until Steve Jobs unveils an impartial robot. In the meantime, however, the bottom line is clear: Pristine impartiality is impossible, and it has always been - as the federal courts in recent decades have acknowledged, by insisting that judges remain on the job even in cases that might seem to suggest a racial or ethnic stake in the outcome.

Conservatives who now complain about Walker's sexual orientation appear to be ignorant about this jurisprudence, since none have mentioned it. Most recently, for instance, defendants accused of discriminating against Asian-Americans sought to have federal Judge Danny Chin removed from their case because he was Asian-American. Chin refused to step down - and a federal appeals court later backed him up. The key passage in the appeals ruling:

"A suggestion that a judge cannot administer the law fairly because of the judge's racial and ethnic heritage is extremely serious, and should not be made without a factual foundation going well beyond the judge's membership in a particular racial or ethnic group."

Granted, that ruling didn't deal with the issue of a judge's sexual orientation. But in the California trial, the anti-gay marriage lawyers clearly felt that spotlighting Walker's private life would not help their case. The conservative chorus might not know the law, but those lawyers recognized that, given the broad parameters established in previous federal cases, it would be a waste of time to go after Walker solely on the basis of his "membership." Which is why they never even filed any court motions to get Walker thrown off the case.

Despite everything I've detailed here, however, you can bet that the same gay-judge rallying cry will recur when the Walker ruling lands in the U.S. Supreme Court. Logic and thought will again be in short supply when the cultural right takes aim at Elena Kagan and insists that surely she must have a textbook conflict of interest, given the way she looks playing softball.