Lose the ruling, attack the judge


When you don’t win an argument on the merits, change the subject. That seems to be the favorite tactic of groups opposed to marriage equality for same-sex couples.

Last week, U.S. District Chief Judge Vaughn R. Walker ruled that Proposition 8, California’s voter-approved amendment restricting marriage to one man and one woman, was unconstitutional. So now the opponents of same-sex marriage, who didn’t win on the facts of the case, have found something else to argue about. Citing reports that Walker is gay, Proposition 8’s supporters are insisting that their case didn’t get a fair trial because someone who is gay couldn’t rule on the case without bias.

A statement by the American Family Assn. released last week called it “extremely problematic that Judge Walker is a practicing homosexual himself. He should have recused himself from this case, because his judgment is clearly compromised by his own sexual proclivity.”


This all-too-familiar strategy of diversion is not only unfair to Walker, it is a destructive attack on the role of our judicial branch of government.

Much like a suggestion that a female judge could not preside over a case involving sexual harassment, or an African American judge could not preside over a case involving race discrimination, Proposition 8’s supporters are suggesting that a judge will rule in favor of any litigant with whom he shares a personal characteristic. This is an absurd proposition.

What would our judicial system look like if every case needed to be decided by someone who had absolutely no characteristics in common with any of the parties? Would that mean that a judge who belonged to a Christian church would have to recuse herself from any case involving a hate crime against a Christian? More to the point, given the Roman Catholic Church’s staunch opposition to marriage for same-sex couples, do the six Catholics on the Supreme Court need to disqualify themselves from hearing an appeal of Walker’s ruling? Following the logic of these groups, we’d have to conclude that a lot more gay judges are needed because straight judges can’t judge cases about straight people!

But it’s even more absurd than that. Would both heterosexual female and male judges be precluded from hearing custody disputes between a mother and father because they too might find themselves one day involved in such a dispute? And, because those opposed to marriage equality argue that allowing same-sex couples to marry harms heterosexuals, wouldn’t a straight judge be just as likely to be “biased” as a gay or lesbian one?

Indeed, by that logic, what impartial, nonhuman species would have to hear a human rights case?

Lambda Legal is a gay rights group, but in the thousands of cases we’ve litigated over our 37-year history, we have never argued when we lost a case that it was because the judge was straight. We may disagree with rulings, but if a judge rules against us, we don’t try to divert people away from the merits of the factual findings and legal arguments — a tactic those opposed to same-sex marriage have relied on.

Judges hold a special and respected place in our society. Every day, they are called on to administer justice: in routine contract or traffic court disputes, gut-wrenching child custody decisions, complex criminal proceedings and, as in this case, disputes about the basic human rights that our Constitution is designed to protect. There may be judges who betray their responsibilities and act with bias, but such a grave accusation must be supported by evidence. Simply disagreeing with a decision is not evidence that it was the result of bias. And assuming that certain personal characteristics, including sexual orientation, render some judges unable to interpret the law and do the job they have sworn to do insults both judges and America’s system of justice.

Jon W. Davidson is the legal director of Lambda Legal, which litigated the cases that established same-sex couples’ right to marry in California and Iowa, and filed a friend-of-the-court brief in support of the challenge to Proposition 8.