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.

Recusal blues.

I agree with you, Mr. Freedman, and Judge Motley. I suspect the reason that the Prop 8 defenders did not move for recusal was not that the recusal issue was settled. I bet that the Prop 8 defenders thought they had the right judge for the case. According to the article in the Times, Judge Walker's nomination to the bench was controversial because he seemed to tolerate discrimination. Indeed,those concerns stalled Judge Walker's nomination for two years.

He was criticized for being a member of a private club that had refused
membership to blacks and women; gay rights advocates also denounced his
representation, as a private lawyer, of the United States Olympic Committee in
its efforts to keep another organization from calling itself the Gay Olympics.

Even assuming that Judge Walker's sexuality was an "open secret", I bet the Prop 8 defenders thought Judge Walker was a good draw for them. They guy belonged to a discriminatory club and had sued gay activists.

There is no question that having an openly gay justice on the Supreme Court would be a big step for gay rights. Statistically speaking, it seems likely that at least one of the previous 111 justices was gay. Having another justice in the closet, if our newest justice is in the closet, isn't really a step backwards, it is just standing still.

The problem with being having a justice, or any public official, in the closet is that the fact they are in the closet suggests that they are afraid of being exposed. That fear, like any fear I suppose, makes them susceptible to pressure from anyone who threatens to expose them. Thus, the decision to stay in the closet, at least in 2010, seems like an excercise in poor judgment.

More on Judge Walker

One of my random questions about the Prop 8 case was whether it mattered at all that Judge Walker is supposedly gay.  In a short profile of Judge Walker, New York Times reporter John Schwartz address this issue at some length:

[S]everal published reports have stated that [Judge Walker] is himself gay. In February, The San Francisco Chronicle called it an “open secret.” Critics have argued that his sexual orientation was a source of bias that should have disqualified him from hearing the Proposition 8 case. Judge Walker has declined to discuss the matter.

Monroe H. Freedman, an expert in legal ethics at Hofstra Law School, said that while bias could lead to recusal in rare cases, “you could say, ‘If a gay judge is disqualified, how about a straight judge?’ There isn’t anybody about whom somebody might say, ‘You’re not truly impartial in this case.’ ”

Mr. Freedman cited a 1975 opinion by Judge Constance Baker Motley of Federal District Court, an African-American jurist who was asked to disqualify herself from a lawsuit alleging unlawful discrimination. “If background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others,” she wrote.

I agree with Mr. Freedman and Judge Motley.  But it seems to me there's a deeper point here.  Apparently this issue is so well-settled and accepted that the attorneys defending Prop 8 didn't even think it was worth raising.  This is another sign of how much our culture has changed in its treatment of gays--now a gay judge presiding in a court trial over a momentous issue of gay rights is simply unremarkable, even to zealous advocates.  However the Prop 8 comes out after the appeals, I think the fact that a gay judge was allowed to act as the trial judge without so much as a peep is a sure sign the campaign for gay rights and gay marriage will ultimately succeed.

This brings to mind some of the early controversy surrounding Justice Kagan's sexual orientation.  As you'll recall, there was a report on cbsnews.com stating that Kagan is gay.  Kagan said nothing, but the White House criticized the report as containing "false charges."  Then there was a lot of teeth-gnashing among pundits about whether it should even matter.

I always thought it--the truth about Kagen's sexuality--mattered, though not to whether she is qualified to serve on the Supreme Court (as she clearly is).  If we are actually supposed care about diversity or "empathy" -- and maybe we actually aren't -- then it matters.  Moreover, having an openly gay member of the Supreme Court would be another big step for gay rights, no?  On the other hand, another closeted member of the Supreme Court would seem to be a step back.  Either way, the truth matters.