After the revelation by Proposition 8 judge Vaughn Walker that he is gay and in a long-term same-sex relationship, Prop. 8 supporters are trying to have his landmark ruling striking down the California referendum vacated on the grounds that he should have recused himself.  Though the entire Proposition 8 campaign and the campaign to defend it in court have been based on homophobic and derogatory stereotypes, this challenge tries to cast itself as something else.

The American Prospect describes the challenge as based on the theory that “it is not Walker’s sexuality per se that’s the problem but rather that he is gay and in a long-term relationship; he might want to get married, making him unfit to rule on the constitutionality of Prop. 8.”  This is an attempt to strain the general practice of conflict of interest recusal from family and financial conflict of interest to some other type of personal conflict of interest.

This challenge, if it were successful, would also raise a larger question about this type of conflict of interest.  “What happens when the judge in a civil-rights case is also part of the minority group whose rights are at stake?”  A judge’s identity alone has not typically been considered cause for recusal, but this question is becoming much more salient as the  judiciary diversifies.

“Until very recently, judges have been (presumably) straight, white men from privileged backgrounds. In other words, they have not been part of the many classes of people who have used the courts to expand their civil rights. But, from Walker to Supreme Court Justices Sonya Sotomayor and Clarence Thomas, the United States has reached a point where members of a disadvantaged minority are on the judicial bench yet remain discriminated against.”

The court should recognize that every judge is a combination of complex identities (race, religion, gender, sexuality, political party, socio-economic status, region, language, national origin, family status, etc.), and trying to point out every situation in which some aspect of a judge’s identity relates to the content of case will only exacerbate the problems of an already over-worked and under-staffed court.  It is the job of every judge to ensure that the rights of every American are protected and maintained, and they have a duty to uphold these obligations regardless of their own personal identity.  Judges are Americans, too, and they should be able to protect their own rights while protecting the rights of every American.





  1. Markus says:

    The homophobes are seriously “grasping at straws” on this one. It’s amazing that there’s even a stay on SSM from continuing, as the sky has not fallen when and where fairness and equality is (was) happening.
    Groups like NOM, FOTF, CWOA, etc… should really carry shame with them wherever they go.
    I can’t wait until the USSC gets this issue. I would be shocked if there is one discenter.

  2. Robert says:

    I would suspect if this case did make it to the USSC there would be three dissenters, one of whom is in a minority group themselves.

  3. Emyth says:

    Would this mean that Heterosexuals also would have a prima facie “conflict of interest” as it concerns “defense” their “right” to “marriage”? What justice would be disinterested enough to judge? Ludicrous…

  4. Little man says:

    Article begs the question.

    It calls Walker a “minority” (publicly, finally, revealed, a person of homosexual behavior). Does that mean a legal minority?

    Legal minorities are not based on what sexual behavior people do in their own privacy, otherwise serial rapists would also be considered a legal minority.

    Are you all really Harvard legal experts?

    • Noah Kaplan says:

      Judge Walker, as all LGBT people, is a member of minority group. Not only are LGBT people a numerical minority, but they are subjected to differentiated rights and privileges based on that identity. There is no need to distinguish in this instance a legally protected suspect classification from a sociological minority group. The question posed by the original post regards whether Judge Walker, as a member of a distinct group that could potentially benefit from his ruling, has a conflict of interest that should have precluded him from deciding the case. He is not the plaintiff in the case seeking to redress a wrong based on protected status. Whether or not LGBT identity has been protected in other contexts is irrelevant to this question.

      I want to first point out and disagree firmly with the comparison between LGBT identity and sex offenders. LGBT people are not sex offenders, and their classification as a minority group is based on immutable identity, not behavior. Second, there is no reason sex offenders can’t be seen as a minority group being singled out for differing rights, as evidenced by the recent challenges to sex offender commitment laws. Any identifiable group singled out for differing treatment is entitled to due process of law. None of that discussion, however, has anything to do with Judge Walker’s role in the Prop 8 case and the movement against him.

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