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Aaron Zelinsky

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Why Judge Walker's Sexuality Doesn't Matter

Posted: 08/05/10 09:40 AM ET

Judge Vaughn Walker's Prop 8 decision is destined for higher courts, but some of those opposing his decision have descended to the lowest level of mud-slinging. A vocal number of same-sex marriage opponents have criticized the Perry decision on the grounds that Judge Walker is (supposedly) gay.

Reasonable people can debate the merits of Judge Walker's opinion, but his sexuality is not a valid ground to critique his legal logic.

Let's assume for the moment that Judge Walker is gay. Even so, his decision in Perry v. Schwarzenegger is as valid as if it were written by a straight person.

The standard for federal judicial disqualification is set by statute. 28 U.S.C. 144 provides that any judge should disqualify himself when "his impartiality might reasonably be questioned" or when he has any "interest that could be substantially affected by the outcome of the proceeding."

First, consider whether Judge Walker's impartiality would "reasonably be questioned" if he were gay. Such crude identity politics rapidly leads to troubling results.

If every judge is partial because the judge is a member of a class affected by particular litigation, then no female judges could decide a Title IX case. By the same token, all religious judges would be unfit to hear First Amendment cases pertaining to religion. All judges who are parents would be unfit to entertain custody disputes.

A judge can be a class member while maintaining his or her judicial objectivity. General personal characteristics are not inherently disqualifying factors for judicial decision making.

Moreover, the standard advanced by some Perry opponents is paradoxically self-defeating. If gay judges should be disqualified from Prop 8 cases, then straight judges should be as well.

If the purpose of Prop 8 is to protect the sanctity of heterosexual unions, then a heterosexual judge is equally interested in the outcome, since the quality of his or her marriage is at stake in the decision. Thus, ironically, Judge Walker could not hear Perry if he were straight either.

Let's now consider whether Judge Walker has any "other interest that could be substantially affected by the outcome" of his case. Surely, opponents of Judge Walker argue, the Judge's right to marry is "substantially affected" by the outcome of Perry.

Not so fast. A potential civil right cannot be an "interest" which compels recusal of a judge since this standard also leads to a world where no judge can decide anything.

For example, take abortion rights. No reasonable person argues that female judges of reproductive age should be disqualified because they will be deciding a case which "substantially affect[s]" their right to have an abortion. Moreover, male and older female judges have close friends and relatives of child-bearing ages. Most they also be disqualified from hearing abortion cases? If so, who is left to decide?

The exclusion of civil rights from the "other interests" which require judges to disqualify themselves is unsurprising. All judges decide civil rights issues which potentially impact their rights, such voting rights, search and seizure rights, and procedural due process protections.

Helpful in this context are the American Bar Association Notes which accompanied the creation of the Code of Judicial Conduct, on which Section 455 is based. These notes indicate that the "other interest" provision was meant to catch certain economic relationships which do not fall cleanly into the category of "financial interests." It cannot be a catchall which guarantees that no judge can hear any case.

Some opponents of Judge Walker's decision recognize that his sexuality is insufficient grounds for recusal, but argue that his decision is still nevertheless questionable because of bias. For instance, Professor Gerard Bradley, writing on FoxNews.com, argues that he is "not saying that Judge Walker should have refused [sic] himself," but rather that the issue of Judge Walker's "bias" is a "conversation worth having."

Such an argument is disingenuous. If Judge Walker is biased, then he should have recused himself. Under Title 28, bias is like pregnancy: you are either are or you aren't. And Professor Bradley does not seem interested in discussing whether a straight judge has a similarly disqualifying interest in the subject.

I happen to think that Perry is correctly decided. I can respect the opinions of those who may disagree. However, we must discuss the merits of the decision, not specious arguments about judicial bias.