An Impartial Third Party

Same sex marriage is an extremely controversial issue in this country. And nowhere is this controversy more acute than in California where voters passed Proposition 8 in 2008, banning same sex marriages within the state. Opponents of the move challenged its legitimacy in court, and the case eventually found itself before Judge Vaughn Walker. After Walker struck down Prop 8, a group appealed the decision based on Walker’s subsequent disclosure that he himself was gay and involved in a long-term same-sex relationship. They contend that this represented a conflict of interest for Walker and that he should have recused himself from the case.

Okay, I understand that at first glance this appears to be a case where the coach of your favorite baseball team is allowed to umpire the game, while the fans of the opposing team voice their disapproval in the stands. What I don’t understand is how the outcome is any different if the opposing team’s coach is allowed a turn at umpire. How is he any less biased? And I don’t hear anyone in the media (other than Jon Stewart) illuminating this issue, either, which is frustrating.

But unlike our hypothetical baseball game, where the obvious alternative is to seek out a coach from a third team that has no vested interest in the outcome, there is no impartial third party that is neither homosexual nor heterosexual. To the best of my knowledge, there are no asexual judges that would be immune from the accusations of bias, so we’re stuck with accepting the ruling of an individual whose job it is to render objective decisions. After all, that is what we pay judges for, isn’t it?


  1. I get what you are saying. It makes sense. I think, playing devil’s advocate, that if we thought about it in a different context, it would make more sense.

    Lets say that we were trying to outlaw people having red hair. The person who HAS red hair would probably not be the best person to try the case, Because they are directly affected by the outcome. Someone who does not have red can be more objective because they aren’t going to be outlawed either way.

    Same goes for this situation. The straight judge won’t be affected no matter the outcome,therefore he is the best person to make the decision. If it were HEDEROsexuality being looked at, I would say let a Homosexual judge try the case, because he doesn’t have a persona stake in the situation.

  2. You know I feel pretty strongly about this issue, and you’ve brought up a really good point here. Plenty of people have pointed out that female judges, as well as judges who belong to racial minority groups, might also face similar so-called conflicts of interest when they’re presiding over a case in which they may conceivably have a vested interest. But for some reason, “straight” judges are never mentioned in these examples of how you simply cannot expect a judge to recuse himself if any facet of the case “may” apply to him personally. A heterosexual judge “may” be subject to the same homophobic prejudices as supporters of Prop 8, so by their own logic, he should also recuse himself. And so it goes in circles.

    The attorneys representing Prop 8 couldn’t win the case on its merits, so they’re going after the judge — but only AFTER he ruled against them. The fact that everyone knew he was gay from the get-go only underscores their desperation.

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