Does it Matter if the Prop. 8 Judge is Gay?

The National Organization of Marriage thinks so. In response to a San Francisco Chronicle article "outing" District Court Judge Vaughn Walker, who is presiding over the Prop. 8 federal challenge in California, the organization released a statement cataloging instances of the judge's bias, which include:

• Subpoenaing the "Yes on 8" campaign for documents, but not the "No on 8" campaign.
• Allowing a non-California gay man forced into ex-gay therapy to testify.
• Allowing the public trial to be broadcast (the Supreme Court put a stop to this until it can consider the matter more thoroughly).

These are all pretty feeble indications of "bias." "Yes on 8" docs were handed over to address the key question of whether the amendment was motivated by "animus" against gays and lesbians -- it wasn't clear why the defenders of Prop. 8 wanted to get their hands on "No on 8" materials. The defense has been allowed to present non-expert testimony that would not have been allowed in a jury trial. And broadcasting the proceedings, despite NOM's claim, is not "illegal." A number of bloggers have also pointed out that Walker once helped sue the San Francisco Gay Olympics for using the "Olympics" trademark -- and that he's a Republican appointee.

But it shouldn't be surprising that the revelation has sent the NOM camp into a frenzy. This is a group that believes firmly that biology is destiny -- that our desires, thoughts, and feelings break down neatly along the gender line. Men can only want women, women can only want men, and they only want each other in order to procreate. It is inconceivable to NOM that a gay judge would put fidelity to the law before his "inherently disordered" sexual orientation.

I can't argue, as some have, that Walker's life experiences as a gay man won't color his views at all. But so what if they do? Being a first-hand witness to the discrimination gays and lesbians face allows him to make a more informed decision. In any event, in order to stand Walker's ruling has to survive scrutiny by higher courts (and straight judges), so it must be based on sound legal reasoning. Note that most of NOM's complaints don't criticize Walker's understanding or application of the law. Instead, they seem to be upset that he has given the issues the broad and open airing they deserve.

-- Gabriel Arana

Cross-posted from TAPPED, the group blog of The American Prospect.