Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Eric Martin has an important take on the argument coming from conservatives that Judge Walker's ruling on Prop 8 is illegitimate because he is (allegedly) gay himself.
He points to similar arguments made against Sotomayor during her confirmation process. In both cases, the assumption is that if one's identity places them in the minority, then that identity is all-consuming and all-controlling, whereas if one's identity is in the majority, it is "normal" and thus has no bearing at all one how one might judge a case.
It's not that I would suggest that his sexual orientation (if he is gay) has no influence on his jurisprudence, but here's the thing, if homosexuality influences analysis of legal issues involving civil rights for homosexuals, doesn't heterosexuality also influence decisions regarding these same matters? After all, heterosexuality is no guarantor of objectivity, it just provides a different set of subjectivities, which are not per se superior to other vantage points.This reminds me of conservative complaints aired during Sonya Sotomayor's confirmation hearings: that her Puerto Rican roots would unduly influence her decision making process regarding civil rights cases. Again, though, the assumption is that being a Caucasian means being free from any and all biases. Which is on its face preposterous as all people are influenced by their past experiences and particular perspective.
And he quotes this from Stephen Colbert:
For instance, take the Dred Scott case. Those justice's life experience, being white men in pre-civil war America some of whom owned slaves, in no way influenced their decision that black people were property. And, their personal backgrounds had nothing to do with the all-neutral court decision that it was legal to send Japanese Americans to internment camps in 1942. Imagine how the life experience of an Asian judge would have sullied that neutrality.
Yes, how horrible that might have been. Because white males merely call balls and strikes as judges, whereas minority judges cannot possibly be objective. This is not a serious argument, it's merely the assertion of supremacy by a majority blinded to their own biases by virtue of having no one around them to challenge those biases.
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Someone had tweeted this link that I thought was pretty good - with regard to the claim that the judge should have recused himself from the case: http://ow.ly/2mq2l
"Why didn't the Prop 8 judge recuse himself?"
"Well, why didn't you file the damn motion?"
Posted by: CW | August 9, 2010 11:24 AM
"the assumption is that if one's identity places them in the minority, then that identity is all-consuming and all-controlling, whereas if one's identity is in the majority, it is "normal" and thus has no bearing at all one how one might judge a case"
Ed, I think this IS the assumption, but I also don't think it is patently untrue. Is that worth discussion?
For gay and straight judgest hearing a minority rights case, there are four options more or less
1Minority judge finds against minority
2Minority judge finds for minority
3Majority judge finds against minority
4Majority judge finds for minority
The least objectionable, in terms of conflict, are 1 and 4. The most objectionable are 2 and 3
If a straight judge had taken the case and it had been 3, the gay community could appear to reasonably appeal against the character of the judge, but the "outrage" would have been tempered by the majority assumption (quote above.)
If a gay judge had taken the case and it had been 2, then the straight community can reasonably appeal against the character of the judge (quote again,) current situation.
I actually wondered about Walker taking the case, because I've always thought the legality would end up being more clearcut from antisegregationist precedents, that the outcome would be #4 (even with a straight judge.) I thought that would be by far the stronger result for the public at large.
In terms of your title: I don't think Walker's sexual orientation is irrelevant, because lots of people think it's relevant, which makes it relevant. He is, after all, just one judge, not a deliberating body.
In an interesting anecdote, and totally true, I just had a discussion the other night with a gay guy in which we were at odds over gay marriage. His viewpoint was that gay marriage WAS different and that it should therefore be called something different, but he had no idea of some of the rights marriage confers vs. civil union (in our state of Mass.) It ended up boiling down to "you're gay and so you don't understand," only exactly 180° from the direction I thought it would be. We almost got in a shouting match when I asked him how many black people he thought agreed with Jim Crow laws depending on how far apart the water fountains were in their town. It was one of those fringe experiences that I didn't expect to have, especially over wings and beer.
Posted by: Buffoon | August 9, 2010 11:32 AM
I've said this before: the main reason right now that Judge Walker's sexual orientation is irrelevant is because the trial is over, he's written his ruling, and we can now read and analyze the facts and logic in the written decision.
If he was so biased as to be unable to render a fair judgment, then the decision should be poorly written and well thought out. If, on the other hand, the ruling is cogent and well written, then the arguments have merit and it is the merits that we should be discussion.
I think that Walker's sexual orientation is a big ad hominem at this point.
Posted by: Chiroptera | August 9, 2010 11:48 AM
Conservatives do not yet understand that hinting someone is Gay is no longer a slur or a danger (unless employed by a rightest nutjob) to their livelihood.
It must be frustrating to them to see one of their means of control (through fear) evaporate as the US public, ever so slowly, edges towards maturity.
Come to think of it, using "Atheist" as a slur is also declining rapidly.
All they have left is throwing out the word: "Liberal", carefully pronounced with a sneer, but that is only effective if insulting each other.
I feel so terrible for the tough luck the conservatives are having.
Posted by: Pinky | August 9, 2010 11:54 AM
@Buffoon: I don't think it's reasonable to come to any conclusion based on one decision. If a judge had a history of civil rights cases coming down exclusively along the lines of majority / minority status that he/she would identify with, there could be reason to suspect that there was a strong bias clouding his/her judgement. But in the case of one ruling, I completely agree with Chiroptera that the ruling itself would reveal any flawed logic that existed.
Posted by: Odie | August 9, 2010 12:00 PM
I agree with the viewpoint of commenter #2. It is better from a public relations standpoint if a majority judge rules for the minority and vice versa. Essentially, the public assumes bias in these cases, except when the judge rules against their bias. One could argue that this is why Judge Jones' decision in the Kitzmiller/Dover case was so strong.
Posted by: DobyGS | August 9, 2010 12:05 PM
But in the case of one ruling, I completely agree with Chiroptera that the ruling itself would reveal any flawed logic that existed.
That is the strongest comback, I think.
"Ya think Walker being gay prejudiced the decision? Then you can surely find examples of it in the decision."
And...I just love, love, love this:
Posted by: gwangung | August 9, 2010 12:05 PM
Pinky "I feel so terrible for the tough luck the conservatives are having."
Yes, it must be tough controlling the national dialogue and having a "wedge issue" to rally The Base.
If only liberals suffered such a terrible curse, as they did in the 30's & 60's. Woe!
Posted by: Modusoperandi | August 9, 2010 12:17 PM
The wheel turns. After good times like today, liberals will once again be afflicted as you describe. All it takes is time and another decade of the way we're headed:
* The middle class will be pretty much gone:
* A decade of deflation will have wiped out all home equity and driven most Americans into foreclosure
* The "safety net" will have been hocked to someone for his mistress' fancy stockings
* Tax reduction will have reached its logical conclusion: the income tax will be zeroed out, with a balanced budget accomplished by cranking up the payroll tax to 30% of all wages up to 150% of the median.
* Unemployment will be steady at only 20%, not counting the 26 million troops occupying the remaining oil fields in the Middle East.
Taxpayers will be rioting over government waste, fraud, and abuse. Some will be demanding that the Government unleash the power of the Free Market by giving corporations the vote, with each dollar of market capitalization having one vote. Others will be demanding the deportation of anyone whose ancestors don't have either immigration records or proof of having served in the Civil War. Still others will be protesting the money wasted by the military on feeding the occupation troops when they should be capable of living off the land.
Posted by: D. C. Sessions | August 9, 2010 1:00 PM
D.C. Sessions, I now understand why you got fired from the Suicide Hotline.
Posted by: Modusoperandi | August 9, 2010 1:27 PM
Wouldn't the conservative logic here have precluded Justice Thomas from hearing the Cross Burning case that was before the court several years ago? As I recall, it was the case where Thomas was at his most emotional in argument.
Dave
Posted by: David Worthington | August 9, 2010 1:37 PM
@David Worthington
I see your Thomas recusal and raise you all the rest of the christian supremes. Scalia first in line.
Posted by: MikeMa | August 9, 2010 2:13 PM
the problem is that all that conservatives see minorities as is the minority that they belong to: a black person isn't a person who happens to be black. for them, that blackness defines his whole identity. this gets projected on to him: they imagine that it defines his whole identity for him as well.
therefore they cannot imagine that a black man, or a gay man, or a woman could possibly be objective in any case regarding blacks, gays, or women. for them, the other's classification as minority is the defining feature and they imagine that this is true for the other and not just for themselves.
Posted by: andrew | August 9, 2010 3:24 PM
perhaps i should clarify: for asshats like this, being black or gay or a woman or whatever is the defining feature of their perception of the person, so in projection they imagine it to be the overriding feature of the person's identity.
does that make sense?
Posted by: andrew | August 9, 2010 3:26 PM
does that make sense?
Oh, yeah.
They take "black" or "gay" as a noun, not an adjective.
Posted by: gwangung | August 9, 2010 3:41 PM
Worse, they take person as the adjective while thinking of "black", "gay", or any other descriptor that can be applied to a person as the noun. And they only loosely allow for person as an adjective when the "noun" isn't WASP.
Just for the record, I grew up WASP. More appropriately, I was raised WASP, but grew up to be a "Bisexual" "Atheist" "Liberal" person.
Posted by: Silent Service | August 9, 2010 4:11 PM
I would also posit that having the kind of diversity we are (slowly) achieving with gay, black, women, etc in positions of power is to add that dimension of awareness and experience that a room full of old, white, christian men typically lack.
Posted by: MikeMa | August 9, 2010 4:12 PM
Silent service, this will sound stupid but that never stops me. Haven't you only given up the P (for protestant) part of WASP leaving you as a WAS? After all nothing in being white and anglo saxon precludes being bisexual and liberal does it?
Posted by: Matty | August 9, 2010 4:33 PM
The solution is simple enough: Disqualify anyone who is homosexual, heterosexual, bisexual, transsexual, or asexual from becoming a judge.
Done and done!
Posted by: Todd | August 9, 2010 4:35 PM
Since the Catholic Church campaigned for Prop 8, I guess all the practicing Catholics on the Supreme Court will have to recuse themselves when the case gets there. Let's see ... that leaves Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan to decide the case. I like the plaintiff's chances!
Posted by: John Pieret | August 9, 2010 4:43 PM
Hopefully someone will give Scalia a blow job so he'll be forced to recuse himself.
Posted by: History Punk | August 9, 2010 6:35 PM
Whatever, prop 8 supporters had ample opportunity to ask walker to recuse himself. They didn't. End of argument.
Posted by: woods | August 9, 2010 7:53 PM
Just to throw another monkey wrench into all this...why does everyone assume that even if Walker is gay, that his supposed bias would be in favor of homosexual marriage? After all, he has not officially come out, and there's no difficulty in pointing out gay men who have taken very strong positions against equality for homosexuals. Ted Haggard and Larry Craig leap to mind.
Posted by: BobApril | August 9, 2010 8:33 PM
This whole non-controversy is based on conservatives denying full humanity to gays. They don't view gays as people, first and foremost; they view gays' sexuality as a primary defining trait and their humanity as merely a secondary trait. This is true of anyone who consciously or unconsciously views straight, white, Christian men as default humans.
Posted by: Sadie Morrison | August 9, 2010 8:35 PM
Damn, Andy beat me to it.
Posted by: Sadie Morrison | August 9, 2010 8:37 PM
Some really smart guy made this same point back in April, right here at Dispatches. ;)
(And now I'm off to the ER, having dislocated my arm while patting myself on the back.)
Posted by: James Hanley | August 9, 2010 9:07 PM
Since no one else has brought up these points, I will.
1. He was named to the federal bench by a Republican, the first President Bush.
2. He has a claim to neutrality. While in private practice, he represented the US Olympic Committee against an event then known as the Gay Olympics.
Posted by: Karl Sniderman | August 9, 2010 9:30 PM
David Worthington wrote:
The case is R.A.V. v City of St. Paul, but Thomas did not write an opinion in the case. He joined Scalia's majority opinion. A fascinating case. The result was actually 9-0, but White, Blackmun and Stevens each wrote a concurrence agreeing with some parts and not with others. Thomas did not write one though. But yes, by this "logic" he would have had to recuse himself -- and ironically, he fully agreed that the law was overly broad and violated the first amendment.
Posted by: Ed Brayton | August 10, 2010 12:59 AM
@History Punk
Thank you for destroying with one mental image the emotional stability I have spent decades constructing.
Posted by: Jeff | August 10, 2010 1:04 AM