washingtonpost.com
Don't ask, don't judge?

By Ruth Marcus
Wednesday, February 10, 2010; 5:55 PM

Does it matter if the judge hearing the lawsuit challenging California's ban on same-sex marriage is gay? Would his sexual orientation interfere with his ability to render an impartial judgment in the case, or the public's confidence that he could decide the case fairly?

The San Francisco Chronicle has reported that "the biggest open secret" in the challenge to Proposition 8 is that Chief U.S. District Judge Vaughn Walker "is himself gay."

Not surprisingly, gay rights groups say they have no qualms about Walker's ability to separate his personal life from his professional judgment. "There is nothing about Walker as a judge to indicate that his sexual orientation, other than being an interesting factor, will in any way bias his view," Kate Kendell of the National Center for Lesbian Rights, told the Chronicle.

Not surprisingly, those supporting the marriage ban are muttering about Walker's alleged favoritism to the gay plaintiffs. "He's been an amazingly biased and one-sided force throughout this trial, far more akin to an activist than a neutral referee," the National Organization for Marriage said in a statement.

Not surprisingly, except for this magnificent irony: When he was nominated for a judgeship by President Reagan, liberal activists attacked Walker for, among other things, alleged anti-gay bias. He had represented the U.S. Olympic Committee when it sued a group for using the name "Gay Olympics," and was also criticized for belonging to San Francisco's all-male Olympic Club. His nomination was stalled for two years.

Back then, the liberal argument against Walker was that he could not judge fairly -- or be perceived to judge fairly -- because of his personal life. As San Francisco lawyer Abby Ginzberg argued in testifying against Walker's nomination, "For civil rights ... litigants who have been forced to turn to the federal courts time and again to seek enforcement ... the prospect of appearing before a judge who is a current member of the Olympic Club, or who traded his membership for a judgeship, does little to inspire confidence in the federal judiciary."

So were liberals right then, when they argued that the judge's personal situation was relevant, or now, when they contend it is immaterial? Situational ethics aside, what is the right way to handle the case?

You're seeing a lot of question marks so far because this one is more difficult than it first appears. My instant reaction was that Walker ought to be free to hear the case. That remains my bottom line, but not without some squirming. No one would question an African-American judge's capacity to preside over a race discrimination lawsuit or a female jurist's handling of a sexual harassment case. In the Proposition 8 matter, a straight judge would bring his own preconceptions to the courtroom, and no one would challenge his impartiality.

But I've argued against the notion of judges as impartial umpires mechanically calling balls and strikes, as Chief Justice John Roberts memorably put it. In many cases, a judge's background and life experiences inevitably come into play, especially in deciding the meaning of the grand phrases of the Constitution. This is why we have judges, not well-programmed computers.

So when Walker considers claims that the ban on same-sex marriage violates the constitutional guarantees of equal protection and due process of law, it's hard to imagine that his sexuality, if he is gay, does not influence his decision-making -- just as the experience of having gay friends or relatives would affect a straight judge. Justice Lewis F. Powell Jr., who cast the deciding vote in favor of upholding Georgia's criminal ban on gay sex, famously told his colleagues, including a gay clerk, that he had never met a homosexual.

Walker was randomly assigned to hear the Proposition 8 case. In uncomfortable circumstances, he made the right choice to remain. The alternative would invite too many challenges to judicial fairness -- Jewish judges hearing cases about Christmas displays, or judges who once represented unions or management presiding over labor disputes.

In this case, I hope the plaintiffs win and that Walker rules that the same-sex marriage ban violates their constitutional rights. At the same time, I've got to acknowledge: If I were on the side supporting the ban and found it struck down by a supposedly gay judge, I'd have some questions about whether the judicial deck had been stacked from the start.

Marcusr@washpost.com.

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