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Can a Gay Judge Be Fair to Straight Folks?

James Esseks,
Director, LGBTQ & HIV Project,
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February 11, 2010

After recent news stories reporting that Judge Vaughn Walker, the federal judge presiding over the Olson/Boies federal challenge to Prop 8’s ban on marriage of same-sex couples, is a gay man, some commentators have started calling for Judge Walker to recuse himself from the case. Whatever Judge Walker’s sexual orientation is, it’s not a reason to take him off the case.

Think about it: Why is a gay judge biased on the issue of marriage for gay people, whereas a straight judge isn’t? True, lots of gay people feel strongly about the issue, but so do many heterosexuals (many even more strongly). Since every judge has a sexual orientation, every judge has a potential bias when faced with a case about discrimination against gay people or straight people. If we kicked judges off a gay rights case because their sexual orientation gives them some kind of stake in the outcome, there would be no one left to hear the case.

If a judge’s sexual orientation mattered, then shouldn’t the five justices from the Washington Supreme Court who ruled against gay marriage in a 2006 case (presumably all heterosexual) have been disqualified from ruling on the case because their sexual orientation rendered them incapable of approaching the issue dispassionately? And if a judge’s personal characteristics were relevant, why shouldn’t the six current United States Supreme Court justices who are Catholics be excluded from ruling on a case about the religious freedom of Catholics?

Since there have not been many openly gay judges in any of our courts, we don’t have much law addressing this question directly. But it doesn’t take much thought to work through the issue in closely related contexts: Can an African-American or a female judge rule on a case about racial or gender bias in employment? The courts have answered that one, quite clearly and many times over: Of course she can.

Take Constance Baker Motley, an African-American woman who spent a long legal career with the NAACP Legal Defense and Educational Fund, litigating desegregation cases (including Brown v. Board of Education) and other landmarks of the civil rights movement. After President Johnson put her on the federal bench, some litigants made motions to disqualify her from civil rights cases because she was African-American and a woman.

Judge Motley properly rejected that motion. As she explained:

I am a woman, and before being elevated to the bench, was a woman lawyer…The assertion, without more, that a judge who…happens to be of the same sex as a plaintiff in a suit alleging sex discrimination on the part of a law firm, is, therefore, so biased that he or she could not hear the case, comes nowhere near the standards required for recusal. Indeed, if background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others, by virtue of the fact that all of them were…of [one] sex…

Judge Walker’s sexual orientation — whatever it may be — doesn’t make him unable to decide the issues before him impartially. What does matter is how he conducts himself as a judge, and his ability to put his own views and background aside and focus on the law and the constitution.

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