May 12, 2011 at 4:34 pm EDT | by Peter Rosenstein
So the Prop 8 judge is gay — big deal

The debate over whether Judge Vaughn Walker should have recused himself, or at least come out publicly as gay, before deciding on the Prop 8 case in California is actually a big step forward for the LGBT community. The world is becoming aware that we have LGBT judges and some are ready to be open about who they are.

Nearly 50 years after women and African Americans had to listen to the bigots contemplate whether they could decide a case involving someone of their own gender or race we in the LGBT community have finally reached that status. People will now question us and debate whether we should be able to sit on cases that may have some impact on our own lives. They will question whether we are able to impartially follow the law and decide a case on its merits, rather than on personal interest, as all judges are required to do. That’s a great step forward and I am only sorry it has taken this long.

If it were determined that a judge would have to declare his/her sexual orientation before being allowed to take a case I can imagine all the additional information that judges would have to declare. It could lead to some interesting reading and in the long run very few judges would be considered impartial enough to sit on cases anywhere.

The questionnaire each judge might have to complete before being allowed to sit on a case would be long and only begin with the question on sexual orientation. It would then go on to ask: Are you now married and have you ever been divorced? Do you have children and if so please list their sexual orientation and that of each member of your family? Do you have any close friends or relatives who are of a different gender, sexual orientation or racial background than you? Is your gender the same as the one listed on your birth certificate? Have any of your children or immediate family members or close friends changed their gender from what appeared on their birth certificate? Please prove those answers by producing the long form of your or their birth certificate. Have you ever been a member of a political party that supports civil and human rights for all people or conversely have you ever been a member of a political party that opposes civil and human rights for any segment of society? The list of questions could go on and on.

What this debate over Judge Walker’s suitability to decide the Prop 8 case does in the short run is show how imperative it is for more members of the LGBT community to come out. Politicians, judges, business leaders and community activists need to stand up and be counted. If we continue to hide in the closet the bigots will continue to claim that we are hiding our sexual orientation for nefarious purposes rather than just fear of them.

I understand and for many years agreed with those who say it is no one’s business. But I reached the conclusion that we will have to make it everyone’s business before we see it become irrelevant. The argument made by the Protect Marriage group with regard to Judge Walker is that they are fighting for a fundamental principle that no judge is permitted to try a case in which he/she has an interest in the outcome is ridiculous in this case. They have no idea whether Judge Walker wants to get married and the argument was turned down many years ago when it was tried with women and minority judges. In this case we could use the same argument against a married heterosexual judge because this same group contends that marriage between same-sex individuals hurts heterosexual marriages thereby making it a case that would directly impact the deciding judge.

We as a nation need to say we will not tolerate bigotry or those who espouse it. The president needs to fully “evolve” and lead. It may be too late for him to lead, but he should follow, on this issue as for the first time polls are showing that more than 50 percent of the nation believes that same-sex couples should have the right to marry.

Those groups opposing it and challenging judges like Vaughn Walker will eventually be forgotten and relegated to the dustbin of history. But until that time we as a community and our allies need to stand up and speak out; and we need to come out.

  • Should Thurgood Marshall have excused himself from Brown v. Board of Education?

  • This is yet another slap the religious right is taking against gay people. You see, gay judges lack the capacity which hetero judges have to be impartial and to decide the case upon constitutional law. If they’re gay, they’re disqualified. May these bigots fry in hell for eternity and their putrid progeny with them!!!

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