By Lucas Grindley
Originally published on Advocate.com July 24 2012 3:33 PM ET
Antigay activists are once again claiming that a gay judge is incapable of ruling in a case about same-sex marriage.
The so-called Americans for Truth About Homosexuality, a group led by Peter LaBarbera and labeled as a "hate group" by the Southern Poverty Law Center, is shouting warnings that judge Sophia Hall is a lesbian and claiming that means she should recuse herself in the case. The Cook County circuit court judge is handling a challenge to the constitutionality of state laws that define marriage as between one man and one woman.
Civil unions became legal in Illinois in 2011. But a list of 25 couples filed two lawsuits in May via Lambda Legal and the American Civil Liberties Union arguing that the marriage ban violates equal protection and due process. The suits have since been combined.
Among Hall's first decisions in the case was on who exactly will defend the 16-year-old ban. The state's attorney general and state attorney had refused, saying the law violated the constitution. And so Hall granted a request from the Thomas More Society, a Catholic legal group, to let two Illinois county clerks mount a defense of the law.
LaBarbera says that because Hall is a charter member of the Alliance of Illinois Judges, an LGBT group that says it hopes to be a resource to other judges and the legal community. LaBarbera points out that members have marched in gay pride parades, and that the group's mission statement says it will, "Promote and encourage respect and unbiased treatment for Lesbian, Gay, Bisexual, and Transgender (LGBT) individuals as they relate to the judiciary, the legal profession and the administration of justice."
A similar argument was made against California U.S. District Judge Vaughn Walker. Proponents of Proposition 8 argued in court that Walker shouldn't have been allowed to rule on the constitutionality of the referendum because he's gay. Walker was also in a decade-long relationship with another man, and lawyers argued he stood to benefit if marriage equality became law. An appeals court rejected all of that argument.
In Virginia and in New Jersey, openly gay nominees to state courts have been stopped by opponents who use basically the same argument — claiming LGBT people can't be trusted to uphold state laws.