Prop 8 and the judgment of Vaughn Walker
, a voter-approved ban on same sex marriage, is unconstitutional. This decision is likely to make its way up to the US Supreme Court, for a final resolution.
As the supporters on either side of the debate get ready to dig in for a battle royal, an interesting story has come to surround the presiding judge in yesterday's decision. Prop 8 supporters are charging that , had an inherent bias, rendering his decision in this case unfair and unsustainable.
Reporting of the judge's sexual orientation has been canvassed in the public before. In an editorial earlier this year, that current speaker of the US House of Representatives, Nancy Pelosi, had opposed Judge Walker's nomination to the federal bench for alleged "insensitivity" towards gays. His offence was that as a private lawyer, he had helped the US Olympic Committee prevent a San Francisco-based athletic competition from calling itself the "Gay Olympic Games".
A nominee to the federal bench under Republican presidents (first Ronald Reagan, and then George Bush Sr), Walker's record might have given supporters of Prop 8 some hope that it portended a conservative judicial mind inclined to rule in their favour in this case. opponents might, meanwhile, have worried that a gay man in a judicial role such as his might over-compensate for his perceived self-interest, in order to burnish his credentials on impartiality.
But that was not to be.
The a conversation on the ethics of judging in cases where there is an apparent self-interest, through identity. Can a woman judge who may herself have suffered sexual violence ever rule objectively in a case of rape? Would a black judge be unduly sympathetic to a black defendant in a case charging reverse racism?
On the other hand, what has been wrong with white, heterosexual, able-bodied, male judges ruling in cases involving women, black people, disabled people and gays for the last several centuries?
The US judiciary has become a site for overheated discussion on how identity factors into judicial thinking. The credibility of Judge Walker's decision will be bolstered by the fact that he has, in the past, taken legal positions that have seemed counterintuitive as a gay man. No doubt, the judge will say in his defence that he went about his duty (then as a lawyer-advocate acting for a client, rather than in a judicial role) without regard to personal considerations and that he exhibited fidelity to the law.
The unpalatable truth is that persons of minority groups who attain positions of power will be presumed to be self-serving or susceptible to bias. This casts many blacks, gays and women holding high office in the perpetual role of constantly providing assurances that they can behave well and exercise reasonable judgment. Nobel laureate Toni Morrison describes this as a state of "compulsive gratefulness" – a psychic payback for the breakthrough of upward mobility and societal acceptance.
Given all this, the boldness of Judge Walker's decision should not be underestimated. In political terms, he has set in train a national debate in America about equality, fairness and who is entitled to marry. But on a more micro level – and regarding an issue that is no doubt personal – the judge has dramatised a simple but important fact of life about a plural and democratic society: that it is fine for a member of a minority group to play a critical role in determining a minority issue – even one that, in some way, may be of personal interest.