Does It Matter That Prop 8 Judge Is Gay?

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Proposition 8, the 2008 California ballot referendum that successfully banned gay marriage in the state, is currently facing appeal in district court. The San Francisco Chronicle reports that Vaughn Walker, the judge overseeing the appeal, is a gay man. Does that matter? Regardless of his decision, experts agree the case will be appealed to the Supreme Court. The New Yorker's Margaret Talbot looks at the implications, or lack thereof:

Does it matter? Well, yes and no. On the one hand, Walker, a conservative with libertarian sympathies (he has spoken out about the futility of the drug war, for instance), is no more likely to let his sexual orientation determine his judicial orientation on a matter like this one than any heterosexual judge ruling on say, a divorce or sexual-harassment case would be. He didn’t choose this case—it was assigned to him at random. And in at least one high-profile instance that involved him in a legal matter related to the gay community, Walker was on the opposite side. In 1987, as a lawyer in private practice, he represented the U.S. Olympic Committee in a copyright suit to prevent a local group from calling its athletic event “The Gay Olympics.” In fact, criticism of Walker from the San Francisco gay community helped to derail his judicial nomination—he was Ronald Reagan’s pick before he was Bush’s.

On the other hand, it’s hard to imagine that a 65-year-old gay man hasn’t thought about questions like whether homosexuality is innate—and hasn’t thought about them more deeply and empathetically than most 65-year-old heterosexual men. Perhaps more to the point, if Walker rules in favor of the plaintiffs, opponents of gay marriage may try and make an issue of his sexual orientation. It wouldn’t be fair, but it wouldn’t be surprising, either.

A commenter at legal blog Above The Law has a different take:
The judge is gay? That’s a lose-lose situation for the gay marriage people. If he rules it unconstitutional, opponents will say it's a biased outcome. If he rules it constitutional, opponents will say 'even a gay judge doesn’t think your position is valid.'
This article is from the archive of our partner The Wire.