Of course it's inevitable that opponents will try to discredit Judge Vaughan Walker's landmark and strongly reasoned ruling by making an issue of the fact that he is himself gay and in a long-term relationship. It's been suggested that he has a vested interest because (1) he lives in California and (2) he might want to marry his long-term partner.
I did not know this when I read his ruling and was blown away by the logic and intelligence of his reasoning, particularly that he based it on both the compelling evidence presented at trial and on questions of law. It should stand on its own merits. If it does, then what does it matter what his sexual orientation is?
Is there any judge about whom it could be said that his sexual orientation was a totally irrelevant fact? Is a heterosexual judge guaranteed to be unbiased about marriage?
It's just that we don't think of that as bias because it is the "norm" in our society; we call that heterosexism -- the invisible influence of our cultural norms on our thinking about controversial issues that challenge those norms.
Or, to put it more succinctly, a fish doesn't know it's in water or know that others could drown in it.
They will try to discredit the ruling -- it's already started. The pushback should be: find us a judge who doesn't have a sexual orientation or a gender. Until you do, we'll judge the judge on the merits of his arguments.
Ralph
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China's Last Eunuch Spills Sex Secrets
ReplyDeleteUnfortunately, he died in 1996.
It's a pretty spurious argument, the sexuality of the judge. I didn't know he was Gay either, but it seems to me his decision stands on the merit of his argument, which, as you point out, is an impressive reaffirmation of our Constitution.
We ran into this same thing in the early days of fighting homo-ignorance in the American Psychoanalytic Association. Even the more moderate voices were buying into the idea that, if you were gay, your views about gay issues couldn't be trusted.
ReplyDeleteWhen I was first considering coming out professionally and was considering acknowledging it when giving an invited paper on bisexuality at the Columbia Univ. Psychoanalytic faculty retreat, I was advised not to do so by a Columbia friend whose opinion I sought. He said he was concerned that, for some of the older faculty, it might discredit what I had to say.
I took his advice and didn't. But since then things have shifted so that gay analysts are now seen as having special insight into the issue, and most of the current contributions on the subject come from them.
The enlightened view of Judge Walker and his opinion would be that, because he has experienced the discrimination and unfairness first hand, he has a sharper understanding and a clearer path to clearing away the obfuscation and non-reasoned prejudices of the majority reflected in Prop8.
The bottom line has to be the evidence-based findings of fact and the reasonableness of his findings of law.
P.S. Would it help any to know that Judge Walker is a Republican and was appointed by President George H. W. Bush?
ReplyDeleteMaybe if he's a CONSERVATIVE queer, it will go down better. Or is that sort of like: only Richard Nixon would have been the one to open up to China in the 1960s.
Here's Maggie Gallagher of National Organization for Marriage:
ReplyDelete"Here we have an openly gay federal judge, according to the San Francisco Chronicle, substituting his views for those of the American people and of our Founding Fathers who, I promise you, would be shocked by courts that imagine they have the right to put gay marriage in our Constitution."
How about: he is upholding the Constitution as it was written? He is not putting anything into the Constitution; he is interpreting it as necessarily including all of "we, the people" under it's principles of equal protection and due process.
Maggie and her ilk are the ones who do not understand the Constitution -- or our Founding Fathers.
A law professor (I forget now where I read it) weighed in on the question raised as to whether Judge Walker should have recused himself because he is gay.
ReplyDeleteHe made the same point I did: if a judge's sexual orientation is germane, then heterosexual judges are just as suspect of being biased. So that's a non-issue.
And then, he added, even if that were a valid point, the time to raise it is before the trial, not afterward when you don't like the outcome.
Actually, this is shaping up to be a great "teaching moment," as they say. Confronting the question of whether a gay judge's ruling is biased simply by the fact that he's gay is making people think about the whole question -- and having otherwise disinterested people pointing out the illogic of thinking a straight judge would necessarily be any more objective.
ReplyDeleteWhen they start ridiculing the bigots, then we're in a good place. A law professor and expert on judicial ethics at Stanford Law School has said that, given the logic that people are using to say he should be discredited, we would have to have a eunuch as the only fit judge in such a case.