Gay judge wrong to rule on marriage case

Let’s assume, for the moment, that United States District Court Judge Vaughn Walker’s decision to overturn California’s ban on gay marriage is legally sound.

We aren’t endorsing his view or commenting on the merits of his decision concerning gay marriage. That’s grist for another editorial. Walker’s involvement in this case raises a different issue.

Let’s assume, in fact, that his decision is a model of legal and jurisprudential excellence. Let’s even assume that the decision to nullify Proposition 8, which was approved by a majority of California voters, is factually precise, comprehensive and accurate.

Let’s further assume that the United States Constitution ensures a fundamental right to marriage, even between people of the same gender. And let’s assume that denial of such a right not only violates the Constitution, but constitutes a moral wrong.

All of these assumptions may be correct about Judge Walker’s sweeping decision. But he never should have decided this case.

Judge Walker is one of two openly gay judges on the federal bench.

The proponents of Proposition 8 did not object to Judge Walker’s assignment to the case on the basis of his sexual orientation when they had an opportunity to do so. They believed he had demonstrated a record of integrity and impartiality, even in cases involving homosexuals.

Rather, Judge Walker, himself, should have made the decision to recuse. Canon 2 of the Code of Conduct for United States Judges — the ethics rules governing federal judges — provides: “A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities.”

The comments to Canon 2 are significant:

“An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety.”

The fact that Vaughn Walker’s signature appears at the bottom of this decision is a blow not only to the judicial system, but to the gay marriage movement itself.

The appearance of impartiality is the judicial system’s most important underpinning. Without it, courts’ decisions lose respect, and without respect, courts’ legitimacy can be questioned. The courts are our last check on a runaway executive, and sometimes, a runaway demos. That courts retain their power is fundamental to our system of government.

When an openly gay jurist decides a bellwether case involving gay rights, he invites skepticism about his personal bias. Indeed, Judge Walker’s sexual orientation flays open this decision to attacks on the judge’s interest, bias, temperament and integrity. And that serves nobody’s interest. Even gay marriage proponents must now attempt to defend the decision as not only legally correct, but also as the product of an impartial decision maker.


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