Should a gay judge have recused himself in Prop. 8 case?

Backers of California’s Proposition 8, which overturned the state Supreme Court ruling allowing gay marriage, want last year’s ruling declaring Prop. 8 unconstitutional to itself be voided. Why? Because the judge who overturned Prop. 8 was not only gay, but he was involved in a long-term relationship (with a man).

You can almost see the sense of that: U.S. District Chief Judge Vaughn R. Walker had “an interest in the outcome” of the case, as Andy Pugno, a lawyer for ProtectMarriage, put it. Assuming, of course, that he wanted to get married.

But, then again, if opponents of same-sex marriage are correct in their assertion that allowing gays to marry somehow weakens the institution of heterosexual marriage, wouldn’t a judge who had been married for 30 years (to a woman) also have had a conflict of interest? Would the only uninterested party in the outcome of this case have been someone committed to never forming a lasting monogamous relationship?

Some might argue that the benefit to the gay judge in a longstanding homosexual relationship is more immediate and concrete than the vague threat to a heterosexual judge in a long-lasting marriage. Though it seems to me that such an argument would undercut, significantly, the entire case against gay marriage.

More important, ask yourself this: Had the constitutionality of the Civil Rights Act of 1964 been challenged and come before the U.S. Supreme Court during Thurgood Marshall’s inaugural 1967 term on the court, would anyone – today, anyway – argue that Marshall should have recused himself because he had an “interest in the outcome of the case”?

If a class of individuals is being denied fundamental civil rights, should judges who happen to be a member of that class automatically recuse themselves?

I don’t think so. Opponents of Vaughn’s ruling should try to find weaknesses in the ruling – if they can – to appeal. They should not attempt to overturn his decision merely because of his sexual orientation and the fact that he was in a long-term relationship. (They even say that it is that fact of the relationship that their request rests upon; apparently if Vaughn were promiscuous and not in a long-term relationship, his ruling would somehow be more valid. That should make no sense to anyone.)

Update: I just came across Adam Serwer’s take on this, which is very similar to mine. The one area where we differ: he posits that, using Prop. 8 proponents’ “reasoning,” a celibate gay judge could have written an impartial ruling, while I thought a promiscuous gay judge could have fit the bill. I guess either would work.

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