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.