Bi-Sexual Judges Only, No Gays and No Heterosexuals (Roger Ingalls)

Gay marriage had a huge victory last week with the passage of the same-sex marriage bill in New York State. With a fair number of Republicans voting for the bill, the tide may be turning.

California, on the other hand, has been in a legal gay marriage mess – yes we can, no we can’t, yes again but we’re in a holding pattern – the saga plays on.

The California Marriage Protection Act ( Prop 8 ) passed in the November 2008 state elections, eliminating the rights of gays to marry. On appeal, United States district court Judge Vaughn R. Walker overturned Prop 8 on August 4, 2010, ruling that it violated both the Due Process and Equal Protection clauses of the United States Constitution.

The pro-Prop 8ers appealed Judge Walker’s ruling on the grounds that he was in a long term gay relationship. “He may someday want to marry his partner so his judgment could be biased”, they argued. From my point of view, their argument is flawed because that sword cuts both ways.

If a gay judge should recuse himself from a gay-issue case for reasons of potential bias, then a heterosexual judge should also disqualify himself for potential non-gay bias. So, what now? Do we run around asking all sorts of personal questions until we find a bi-sexual judge? This sounds a little silly and it is a slippery slope; white judges can’t rule on non-white cases, black judges can’t rule on non-black cases, a judge with a particular religious view can’t rule on a case involving a different religion and so on. Maybe we should ask the judge if he has an innie or outtie belly-button just in case that has some relevance.

What pissed me off most about the pro-Prop 8ers’ gay bias argument was the lack of intelligent commentary on major media sources about bias working both ways. If a non-gay judge made a ruling on this case would we be discussing the sexual orientation of that judge? The answer is no. Why is that?

Perhaps we’re not as accepting as we think.

Let’s end this on some positive notes. On June 14, 2011, Chief US District Judge James Ware rejected the pro-Prop 8ers’ appeal regarding Judge Walkers’ sexual orientation. Today, June 29, 2011, Rhode Island’s Senate and House passed a civil union bill and the Governor indicated that he would sign it – it’s not a gay marriage bill but it is a progressive step.

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Roger Ingalls is well travelled and has seen the good and bad of many foreign governments. He hopes his blogging will encourage readers to think more deeply about the American political system and its impact on US citizens and the international community.