County Fair

Prop 8 Defenders Accidentally Admit Same-Sex Marriage Has No Negative Consequences

April 15, 2011 4:03 pm ET by Carlos Maza

Judge Vaughn Walker, who ruled California’s Proposition 8 to be unconstitutional in the 2010 Perry v. Schwarzenegger case, recently confirmed that he is openly gay, sparking renewed outrage from anti-gay right-wingers who believe Walker’s sexual orientation influenced his decision.

John Eastman, a member of the San Francisco Chronicles editorial board, asserted  Walker’s decision must be vacated because he is a “direct beneficiary” of his ruling:

Walker's admission requires that his decision in the case be vacated. He is either a direct beneficiary of his ruling in the case, or a person with a close-enough personal interest in the case that his impartiality might reasonably have been questioned if the required disclosures had been made. In Liljeberg vs. Health Services Acquisition Corp., the U.S. Supreme Court held that vacatur is required even when the disqualifying relationship only became known to the parties 10 months after the judgment entered in the case had been upheld on appeal. Where an objective observer would have questioned the judge's impartiality, recusal is required, and the appropriate remedy is to vacate the judgment because of the risk of injustice to the parties and of undermining the public's confidence in the judicial process. [emphasis added]

Similarly. J. Matt Barber, co-host of the “Liberty Live” talk radio program on AFR Talk -- a radio show created by anti-gay hate group the American Family Association – recently wrote that federal law “requires” a “heterosexual judge” to decide marriage equality cases because a heterosexual judge would not possess a personal interest in the case:

On a case concerning the novel question of radically redefining marriage to include same-sex pairs, a heterosexual judge, by definition, would not possess a personal “interest that could be affected substantially by the outcome of the proceeding.” A heterosexual judge is precisely what federal law requires under such circumstances.  

By analogy, if a federal judge were presiding over a case to determine the merits of a new gambling law, and that judge happened to have a gambling addiction, law would require that he recuse himself due to a clear conflict of interest. At a minimum, “the judge's impartiality might reasonably be questioned.” [emphasis added]

As ridiculous as it is to imply that cases about minority rights should never be decided by members of the minority group, it’s important to highlight the assumption that underlies these statements: Heterosexual judges should oversee cases involving marriage equality because – as Barber explicitly stated -- they have no “personal interest” in the outcome of those cases.

Despite right-wing fear-mongering about the redefinition of marriage, the slippery slope to polygamy, and the decline of responsible child-rearing, the anti-gay right is now arguing that heterosexual judges (indeed, heterosexual people in general) can remain objective because they have nothing to gain or lose by allowing loving, committed gay and lesbian couples to enter into civil marriage.

For once, we couldn’t agree more.


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