Earlier this summer, U.S. District Court Judge Vaughn Walker ruled California’s Proposition 8, which banned same-sex marriage in the state, violated the Constitution’s guarantee of equal protection without furthering any state interest. By most accounts, his ruling was legally well-founded and thought out. “[N]obody can fairly accuse Judge Walker of putting together an insubstantial or unsubstantiated opinion today. Indeed, the whole point of this legal exercise—the lengthy trial, the spectacularly detailed finding of facts (80 of them! with subheadings!)—was to pit expert against expert, science against science, and fact against prejudice,” legal correspondent Dahlia Lithwick wrote at Slate after the ruling was issued.
As expected, pro-Prop.8 conservative groups, including the American Family Association and the National Organization for Marriage, immediately claimed Walker is biased on the issue because, as the San Francisco Chronicle and other outlets reported, Walker himself is an out gay man.
“His situation is no different than a judge who owns a porn studio being asked to rule on an anti-pornography statute,” the AFA said in a statement. “He’d have to recuse himself on conflict of interest grounds, and Judge Walker should have done that.”
Legal experts made short shrift of the recusal demands. There are any number of instances in which judges should recuse themselves from cases: when they have direct or familial financial ties to one of the parties; when one of the parties contributed heavily to the judge’s election campaign; when the judge had previous involvement with the case at a lower level (such as Sonia Sotomayor recusing herself from a case she ruled on as a federal circuit judge, or Elena Kagan recusing herself from cases she helped craft while Solicitor General).
Although technically the law provides for recusal when there is sufficient reason to question a judge’s impartiality, attributes such as sexual orientation (or race or gender or religion or marital status, etc.) are not appropriate reasons, excepting perhaps for extreme situations, which this ruling, with solid legal reasoning, so clearly is not.
As Monroe H. Freedman, a legal ethicist at Hofstra Law School, told The New York Times, “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.’”
“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,” wrote Nate Jones in Time.
A similar battle is playing out in the media. Was it appropriate for newspapers to report that Walker is gay? The L.A. Times’ ombudsman, Deirdre Edgar, tackled the question in a recent column.
[T]he decision to include Walker’s sexual orientation was based on fairness. Walker’s political background (he was nominated by President Reagan and appointed by President George H.W. Bush) was included for the same reason, Lauter said. “Both — ideology and sexuality — are factors that a reasonable person could see as having an impact on a judge’s view of a controversial issue such as same-sex marriage.”
If the judge hearing the case were heterosexual, would that have been noted? Lauter acknowledged that it probably would not.
Arturo González, president of the Bar Association of San Francisco, disagreed.
Indeed, if this “totality of life experience” were so relevant to The Times, why did it not report on the sexual orientation of the heterosexual trial court judge who originally struck down the same-sex marriage ban in 2005, finding that it violated the California Constitution prior to its amending by Proposition 8? Why did The Times not report on the sexual orientation of each California Supreme Court justice who handled the same-sex marriage cases on appeal? Was it not newsworthy to The Times under its “totality of life experience” standard that the four justices in the Supreme Court’s majority recognizing same-sex marriages in 2008 are heterosexual? Is sexual orientation only newsworthy when a gay judge presides over a case involving lesbian or gay citizens?
Of course, now that The Times has articulated this new standard of relevance, it should at least walk the talk and apply it fairly to all judges. Even if it wanted to eliminate this double standard by applying Lauter’s “certain aspects of their humanity” benchmark just to all judges hearing the appeals, however, it would be a formidable undertaking. Such reporting would require accurate disclosure of each judge’s sexual orientation, marital status, religious background and beliefs, biological relationship to his or her children, and perhaps other factors. Even if such information could be obtained, it should be evident that such characteristics, by themselves, are irrelevant to an individual’s ability to be fair and impartial and are not the legitimate subjects of news coverage. The same filter should have been applied here.
González is correct that the Times has set a new standard of relevance. That new standard, however, is rather unsavory; it requires inappropriately personal coverage of the judiciary’s private lives.
For example, following the Times’ reasoning, any reporting on an abortion case would have to investigate whether the judge had ever had an abortion herself or, if she has children, whether she ever considered abortion.
In covering an affirmative action challenge, the Times would have to mention a judge’s race and whether he or she ever benefited from affirmative action initiatives.
Immigration rulings would also need to examine how far back the judge’s ancestors immigrated to America in order to properly evaluate any possible influences (unless, of course, the judge is Native American, which they would also have to note).
Does any of that seem copacetic? It is certainly tempting to find Walker’s sexual orientation relevant to the issue, but not only is such information irrelevant to legal reasoning, it is highly invasive and almost impossible to prove. It presents a dangerous new trend in legal reporting, one that should be halted immediately.