Homosexual Judge's Competence Questioned

US District Chief Judge Vaughn R. Walker ruled that Proposition 8 is unconstitutionally discriminatory because marriage is not between a man and a woman.

Where could he have gotten this idea? It turned out that the judge himself is a homosexual. It is more than a stretch to believe that his life as a homosexual did not affect his decision concerning homosexual rights.

Would a person engaged in the very activity that is being questioned be the best judge of its legal character? One of the most elementary principles of justice is that one should not judge a case in which one has an interest. But Judge Walker apparently did not feel the need to recuse himself, though it would seem obvious that he, as a homosexual, would have had a personal interest in the outcome.

District Court Judge James Ware heard arguments on the motion that raised this very issue, and denied it. In the decision, Ware explained that,

"Requiring recusal because a court issued an injunction that could provide some speculative future benefit to the presiding judge solely on the basis of the fact that the judge belongs to the class against whom the unconstitutional law was directed would lead to a Section 455(b)(4) standard that required recusal of minority judges in most, if not all, civil rights cases.”

There is a profound problem with this reasoning.  It prejudges the case as a “civil rights” issue.  It is not the "class" to which Walker belonged, but the behavior in which he engaged that was at issue in his conflict of interest.  Do laws against murder discriminate against a “class" of murderers?  Acts do not constitute class.  They are voluntarily performed by individuals.  It is the moral and legal character of an act that constitutes the matter at hand, not the class of the person performing the act.  Let us say that the constitutionality of Prohibition was being decided.  Would it be relevant to the judge’s competence to hear the case if he were an active alcoholic?  Why, then, is it less relevant in this case, which was to decide the constitutionality of same-sex marriage, that Judge Walker was in a 10-year "relationship" with a partner, as he later admitted?

In fact, the judge was a beneficiary of his own ruling – not only in the direct sense that he could now marry his "partner" if he so wished, but in the larger rationalization of homosexual acts as being morally normative. His 136-page ruling can be seen as a bald act of self-justification, which he now enforces upon the broader public as legally mandatory.

This, of course, is a major misuse of law. In The Ethics, Aristotle noted what impels it: "Men start revolutionary changes for reasons connected with their private lives." People who live morally disordered lives – and a life centered on homosexual acts is morally disordered – must always search for rationalizations that permit them to continue their behavior. Otherwise, their conscience rebels (see The Culture of Vice). Judge Walker's revolutionary ruling was indubitably tied to his private life, the rationalization for which he then required everyone to accept – according the U.S. Constitution, no less.


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