Should the Prop 8 Judge Have Recused Himself?

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Paul Chinn/San Francisco Chronicle/Corbis

Vaughn Walker is a gay man, according to the San Francisco Chronicle. He is also a federal judge who this week struck down California’s same-sex marriage ban. Should he have recused himself?

Of course not.

Though conservative organizations such as the American Family Association and magazines like The National Review are arguing that Walker’s sexuality made him biased in the case, according to every legal expert newspapers can drag up, that is quite frankly a ridiculous argument.

The New York Times found Monroe H. Freedman, a legal ethicist at Hofstra Law School, who pointed out, “You could say, ‘If a gay judge is disqualified, how about a straight judge?’ There isn’t anybody about whom somebody might say, ‘You’re not truly impartial in this case.’”

The Sacramento Bee talked to Chapman University law professor (and former clerk for Clarence Thomas) John Eastman, who argued, “Every judge has their own life experiences they bring to the table. There is nothing inappropriate about that,”

The Bee also found Larry Levine, a professor at McGeorge School of Law, who went even further: “I think it’s profoundly offensive to suggest that a judge who is not of the sexual orientation of the majority or the race of the majority or the religion of the majority is unfit to hear cases. … The idea that white male heterosexual Christian judges don’t have any bias is equally absurd.”

Readers who are still not convinced should consider this: Would a white male judge have been expected to recuse himself in Regents of University of California v. Bakke? Of course not.

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