Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, February 11, 2010

Should Judge Walker's sexual orientation matter?

There has been a bit of controversy over the last couple of days regarding the revelation that Vaughn Walker, the federal judge presiding over the challenge to Proposition 8 (the California ban on SSM), is gay.  Even those who believe that Proposition 8 should be struck down on constitutional grounds confess that "If I were on the side supporting the ban and found it struck down by a supposedly gay judge, I'd have some questions about whether the judicial deck had been stacked from the start."  In the event that the ban is struck down, I really hope that the ban's supporters will not pin the outcome on the sexual orientation of Judge Walker.  I haven't followed the proceedings closely, but I know that there have been some very controversial rulings that seem to favor the plaintiffs.  Of course those rulings are fair game to raise on appeal.  But challenging the rulings is one thing; piercing the judicial veil is quite another.  One premise of the rule of law is that we maintain public confidence in the ability of judges to do their jobs impartially; even if pure impartiality is a fiction, it's a very important fiction. 


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"In the event that the ban is struck down, I really hope that the ban's supporters will not pin the outcome on the sexual orientation of Judge Walker."

But what if it is true? With all of the emphasis on law really being this or that "perspective," shouldn't those who favor this approach not be surprised when one's religion or background is questioned.

I don't know about piercing the judicial veil. It would seem that that would be a futile exercise unless we could get inside someone's brain.

Posted by: Don Altobello | Feb 11, 2010 12:14:14 PM

"[C]hallenging the rulings is one thing; piercing the judicial veil is quite another."

This is the heart of the matter. Would we question the impartiality of a disabled judge trying an ADA case? Or a black judge presiding at the criminal trial of white supremacists? I know nothing about Judge Walker, but I think he deserves the presumption (not an irrebutable presumption, but a strong presumption nonetheless) of impartiality and judicial integrity.

Posted by: Bill Collier | Feb 11, 2010 12:55:12 PM


Hear, Hear!

Well said. Indeed, I often wonder if judges often take special care to demonstrate impartiality in such instances, knowing full well that some individuals will spontaneously react with ill-founded suspicion.

Posted by: Patrick S. O'Donnell | Feb 11, 2010 5:15:51 PM

Yeah, when a white judge and jury convict a black defendant no one ever dares to call into question the bias of the decisionmakers. Oh, wait . . . only whites have biases agains blacks, not homosexuals in favor of themselves having the right to marry.

Judges have coercive power, public obedience and appointments. That's what they need and deserve. They don't need or deserve a public presumption that they are acting neutrally when they have obvious general interests in the case. Widespread public scepticism of judicial activity is more important in checking judicial impudence than the marginal improvement in judicial power that self-imposed public censorship would have. Judges are not lacking in power or respect; they are always lacking in motivations to act neutrally.

Posted by: Pensans | Feb 12, 2010 12:18:22 AM

The linked study makes it clear that in most cases, identity issues affect the outcome of judicial decisions.


There is no rule of law . . . just different interest groups splitting a pie. If a judge doesn't look like you, a judge doesn't make legal judgments like you.

Posted by: Pensans | Feb 12, 2010 11:41:39 PM