A response to one of Mr. Torvik's questions.

A few days ago you posed some questions related to the result in Perry v. Schwarzenegger. While I have still not finished reading the 136-page order, I am prepared to answer one of your questions. Specifically, whether it matters that Judge Walker may be gay.

As an initial matter, it is worth noting that, as Tracy Clark-Flory points out, the blog entry used to support the theory that Judge Walker is gay is not going to make Woodward and Bernstein lose sleep that they might be losing their place in the pantheon of reporting.

But even if the speculation about Judge Walker is correct, the answer to your question "Does it matter, at all, to anyone, that Judge Walker is, apparently, gay? " is "Not unless you are a special interest group that is using the gay marriage trial to raise money." (I'm talking about you National Organization for Marriage and American Families Association). For the rest of us the answer has to be "no".

The answer is no because if we reversed the sexual identity of the judge would anyone, other than special interest groups, be claiming that a straight judge needs to recuse himself? Of course not. Unless we can somehow devise a method by which judges without sexual preferences are the only ones who can hear sexual orientation cases; and judges without gender are the only ones who can hear gender discrimination cases; and judges who don't belong to any racial group are the only ones who can hear race discrimination cases, we can't find membership in this sort of group to be a disqualifying factor. On a side note, it would be interesting to know if any of the people who think the answer is "Yes" also think that Justice Thomas should recuse himself from racial discrimination cases.

Is it possible that Judge Walker's sexual orientation gave him a degree of empathy that a straight judge his age might not have had? I suppose it is. But, Judge Walker's empathy towards gay people, if he has any, might also spring from the fact that gay people are seen more sympathetically by society in general. For evidence of this, one need look no further than to compare the Supreme Court opinions in Bowers v. Hardwick with Lawrence v. Texas.

In Bowers, Justice White described the issue facing the Court as follows:

The issue presented is whether the Federal Constitution confers a fundamental
right upon homosexuals to engage in sodomy, and hence invalidates the laws
of the many States that still make such conduct illegal, and have done so
for a very long time.

I am not the first person to note that as soon as you read the issue, you know that the state is going to win the case.

In Lawrence, Justice Kennedy writes things like this: "the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." He also wrote "the intimate, adult consensual conduct at issue here was part of the liberty protected by the substantive component of the Fourteenth Amendment's due process protections." And then this kicker, "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."

If a seventy-year-old man probably straight man can write the opinion in Lawrence, and not be told he should have recused himself, it is hard to make a rational argument that a sixty-six-year-old possibly gay man can't reach the same conclusion without having to rely on an impermissible bias.