Vaughn Walker's Sexuality Irrelevant
BY Erwin Chemerinsky
April 26 2011 1:05 PM ET
The motion to set aside Judge Vaughn Walker’s Prop. 8 decision because he is gay has no chance of success and is deeply offensive.
A judge’s race or gender or religion or sexual orientation never requires disqualification, though a judge might be personally affected by his or her rulings based on any of these factors. It would have been unthinkable to say that an African-American judge could not have heard challenges to laws requiring segregation.
Judges constantly decide cases that might affect them or their family members. A female judge of reproductive age is allowed to decide cases involving the availability of abortion, even though it might affect her in the future. Judges with minor-age daughters are allowed to hear challenges to laws requiring parental notice or consent for unmarried minors’ abortions. Catholic judges can hear challenges to abortion laws even if their church threatens to deny them communion if they rule in favor of abortion rights.
These examples are typical. For instance, judges can hear challenges to affirmative action programs even if they have children who might benefit or be hurt by whether race can be considered in college and professional school admissions. During the 1950s and 1960s, federal judges in the South ruled on challenges to segregation, even though their families would be affected by the rulings.
The list is endless of situations in which a judge’s life might be affected by his or her decision. Under the codes of judicial ethics, this is not sufficient to require a judge to be disqualified.
Obviously, there are circumstances where judges must be disqualified. The rules concerning judicial ethics specify many such instances. If a judge or a member of the judge’s family has a financial interest that would be affected by the case, disqualification is required. Likewise, a judge cannot participate in a case if the judge or a family is involved in the litigation. But the mere fact that a judge conceivably might be affected or that a judge has views isn’t enough for disqualification or for criticizing the judge for hearing the matter.
Indeed, to listen to the supporters of Proposition 8, everyone in society, regardless of sexual orientation, is affected by marriage equality. A central argument against allowing gays and lesbians to marry has been that it will harm the institution of marriage. This seems a silly argument, but it certainly means that there is no judge who would be unaffected by the constitutionality of Proposition 8.
It is understandable that supporters of Proposition 8 disagree with these conclusions, and that is what appeals are for. But it is nonsense to say that Judge Walker did anything wrong by hearing the case, which was randomly assigned to him, and by deciding the matter. Those who are attacking the decision by attacking Judge Walker should be ashamed.