05/16/2011 11:04 am ET Updated Jul 16, 2011

Should Judge in Same-Sex Marriage Case Be Recused?

Backers of California's Proposition 8 have asked a federal appeals court to throw out the recent landmark decision declaring that the ban on same-sex marriage is unconstitutional. Because Vaughn Walker, the trial court judge who issued the opinion, has since revealed that he is gay and in a relationship, Proposition 8 supporters insist he was biased against them.

Few principles are as important to the rule of law than that judges be neutral arbiters, avoiding any case in which there is an appearance of impartiality. Judges today don't recuse themselves often enough. But, as others have correctly recognized, the claim of Proposition 8 proponents in this case is absurd. If sexual orientation is grounds for recusal, no judge could hear the case because every judge has one.

I want to focus here on another, less well recognized, issue: how the effort to recuse Judge Walker exposes the flaws in the case against same-sex marriage.

Same-sex marriage opponents insist that they don't want to recuse Judge Walker simply because he's gay. They insist that, like a judge with a financial interest in a company involved in a case before him, Judge Walker stood to gain personally from ruling in favor of same-sex marriage. If California is forced to allow gays to marry, Walker will be able to take advantage of that opportunity and secure any and all of the benefits that accrue from marriage.

The ironies abound. In Judge Walker's courtroom, the defenders of Proposition 8 argued that the ban on same-sex marriage didn't discriminate because gays and lesbians weren't denied any significant benefits. California offers domestic partnerships, which the lawyers insisted then offered all the same privileges of marriage. If that's right, then what exactly does Judge Walker stand to gain by getting married?

Writing in the National Review Online, conservative legal commentator Ed Whelan admits that marriage is a "valuable legal right." That is correct -- and exactly why states shouldn't be able to deny gays and lesbians the ability to marry. It's a violation of the Constitution's command that all people be afforded "equal protection of the laws" to deny people fundamental rights on the basis of irrelevant characteristics, like their race, sex, religion, or sexual orientation. Yet that is precisely what the ban on same-sex marriage does.

Implicit in Proposition 8 supporters' effort to recuse Judge Walker is the notion that, unlike a gay judge who might benefit from marriage, a heterosexual judge would be impartial. But to accept that notion, we must reject another central claim in the case against same-sex marriage: that gay marriage undermines the traditional institution marriage.

The notion that allowing more people to marry will destroy the institution is, to my mind, bizarre. If opponents are right, however, it would mean that a heterosexual judge can't be impartial because he or she would have a stake in the outcome, too. If the judge is currently married or might one day like to be married, he or she would be biased in favor of protecting the institution from the supposedly devastating harm that gay marriage would cause.

By seeking appointment of a heterosexual judge, same-sex marriage opponents are conceding that gay marriage won't harm traditional marriage. Either that or they think that no judge can be impartial.

Truth is, same-sex marriage opponents do believe heterosexual judges can be impartial and gay judges can't. And that itself reveals the animus behind so much discrimination against gays and lesbians. There is absolutely no empirical evidence that gay judges can't look beyond their sexual orientation and decide cases impartially -- just like there is no evidence that black judges can't rule objectively on discrimination cases.

The Supreme Court has repeatedly held that laws based on negative stereotypes about politically unpopular minorities are unconstitutional. (See here and here.) Yet that is precisely what same-sex marriage opponents base their argument for recusal on: an unfounded stereotype about the bias of gay judges. Indeed, the entire case against same-sex marriage relies on similarly groundless claims -- about the effect on traditional marriage, for example, or about the ability of gay parents to raise children well.

It's about time that we recognized that a person's sexual orientation, like a person's race or religion, tells us nothing about that person's abilities -- whether they are a soldier, a parent, or, yes, even a judge.