Claim that Gay Judge is Unfit to Rule on Prop 8 Gets its Dreadful Day in Court, Hurts Our Feelings

Astute readers may have noticed that despite our obvious fascination with and obsessive analysis of the Prop 8 case and its aftermath, we’ve pointedly avoided covering the latest “development:” the accusation by Yes on 8 proponents that Judge Walker’s decision should be overturned because he is a gay man ruling on a gay rights case. Although the issue has come up in the news again and again, we’ve ignored it each time, not willing to waste time or words or resources or brain cells covering something that should never have been “news” in the first place – especially not while there are real issues that, by virtue of not being imaginary problems, actually affect the lives of people in our community.

But today there was an official hearing on the issue of whether or not Judge Walker is qualified to deal with sexual orientation in the course of his profession, being that he himself has a sexual orientation that is not “straight.” The judge will make a ruling within 24 hoursFrom

The hearing today took place in the courtroom of Chief Judge James Ware, who took over the Prop 8 case after Walker’s retirement. Both were George H.W. Bush appointees. Ethics experts were quick and nearly unanimous in opining that this effort to overturn Walker’s decision on the basis of his relationship is specious as well as desperate. No claim that a federal judge should have been barred from hearing a case because of race, gender, or religion has ever succeeded, a point made by California Attorney General Kamala Harris in her brief opposing the motion to vacate this ruling: “Just as every single one of the attempts to disqualify judges on the basis of their race, gender, or religious affiliation has been rejected by other courts, this Court should similarly reject Defendant-Intervenors’ effort to disqualify Judge Walker based on his sexual orientation.”

We can’t avoid talking about this any longer, but there’s also really only one thing that can be said:

This is the absolute last thing we should ever have to waste time talking about, and it’s insulting that we’re forced to.

we'd rather be on tumblr

You may remember this happening before, in the case of now-Supreme Court Justice Sonia Sotomayor. Because of a (completely true and commendable) comment about how her life experience informs her job skills, and because, if we’re being honest, her skin is brown, Sotomayor was subjected to relentless grilling from room after room of old straight white men about whether her “experience” was not really a “bias” that would prevent her from doing her job. Because none of their life experiences as deeply over-privileged (usually white/straight) people ever informs the way they think or legislate in cases that involve poor people or people of color or welfare recipients or women or immigrants or women or religious minorities. Of course.

Sonia Sotomayor is now a Supreme Court Justice, though, and it’s very unlikely that this case will end up damaging Judge Walker’s judicial record or rulings, either. The case is being heard by Judge Ware, the judge who has stepped up to take Judge Walker’s vacated seat, and tweets from the courtroom seem to indicate that he doesn’t have much more patience with Yes on 8 attorney Charles Cooper than his predecessor did. But that doesn’t change how insulting it is that something this absurd has ever made it as far as it has. A helpful analogy from the Atlantic’s Andrew Cohen, to illustrate exactly how outrageous a claim is being made:

So let me take you to the baseball diamond. It’s the Yankees versus the Red Sox (don’t read anything into my selection of teams, pick your own if you’d like). The Red Sox are crushing their opponents. It’s 15-0 in the 6th inning. The Yankees’ pitchers aren’t pitching and the Yankees’ hitters aren’t hitting. The bases are loaded with Sox and New York manager Joe Girardi decides after a visit to the mound not to replace his pitcher, who has been battered about like a rag doll by Boston’s hitters.

“Are you sure about that decision, Joe?” the home plate umpire politely asks Girardi as the manager begins to walk off the field. “I just want to make sure I’ve given you a chance to try something else.”

“We’re fine, ump,” Girardi responds. And the game continues. It ends 21-0. Eight months later, the Yankees find out that the umpire was dating someone from Boston.

They immediately call Major League Baseball Commissioner Bud Selig and share with him their new evidence.

“The game was rigged!” the Yankees cry. “That ump had it in for us. The fact that he is dating someone from Boston creates a reasonable suspicion that he was unfair and called the game in favor of the Red Sox. The game should be a do-over.”

“But you guys got crushed,” Selig responds. “It was never a close game. What, possibly, could this umpire have done to influence the impact of this game more than he otherwise would do in the normal course of business?”

“He’s from Boston, judge,” the Yankees say. “That’s all you really need to know.”

It’s an accurate depiction of the situation for the most part. Except imagine that Selig holds out until finding out that the ump is gay, and then shrugs and says “Well, I guess you can go to court if you want. It’s a free country.”

This isn’t insulting or shameful just because it attempts to make a joke of the legal system, or affects a complete and total lack of understanding about the judicial process. (Although it does.) We’ve refused to even think about entertaining this story before now because it’s about where gay Americans stand, and how much progress we’ve made. Which is, apparently, not much. While in general the ‘oppression olympics’ are not something worth engaging in, it’s hard to avoid wondering “Could this ever, ever have happened if Judge Walker was anything other than gay?” Cohen’s of the opinion that it couldn’t:

“No reasonable person in America today would challenge a black judge by claiming he could not fairly judge a civil rights case. No reasonable person in America today would challenge a female judge claiming she could not fairly judge a case about women’s health. “

I’m not convinced that’s true. While I can’t call any examples to mind, they don’t actually sound outside the realm of possibility. But the fact is, they’re not happening right now, and this is. To those of us who followed the Prop 8 trial in detail, it was one of the most affirming and validating events of this generation. We were vindicated in our long-held belief that the evidence of our own hearts and lives and families is real and is valid, and vindicated also in our belief that the “evidence” of the bigots who attack us is flimsy at best, and laughable at best. At the end, we were given a 138-page decision that explained in detail why we were right to be angry that our rights had been denied for so long, and compiled irrefutable evidence that the slights and injuries we deal with are real.

As seminal as it was, the Prop 8 trial didn’t change much on the ground; marriage in California still hasn’t actually been re-instated, and the experts seem to agree that this will end in the Supreme Court one way or another. For most of us, the real value of Judge Walker’s Prop 8 decision was personal, was emotional, and that’s what this is trying to take away. No matter how this hearing turns out – the result will, again, likely be in Walker’s favor – the implication of its happening at all is clear: all of that is ultimately meaningless, because we’re just a bunch of queers. That isn’t hyperbole; that’s exactly the intended message.

Maybe in the end this hearing will be a good thing; maybe it will create some kind of precedent that can protect future judges and future decisions from the same attack. Maybe this will, in a roundabout way, make it safer to be an out gay judge. But right now, it’s just a slap in the face.

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Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

Rachel has written 1142 articles for us.


  1. The stupidest thing about this is that the whole pro-Prop 8 case is based on the idea (as I understand it) that allowing gay marriage somehow hurts straight people and their straight marriages. So these people are complaining that Judge Walker was unbiased because he had some stake in overturning Prop 8–well, wouldn’t any straight judge, according to their reasoning, have a stake in upholding Prop 8?

    Also, why does it have to be the Yankees who are the stand-ins for the right-wing bigots in that analogy? Huh??

    • ‘Cause the Yankees are the Evil Empire >:(

      Sorry, couldn’t help it, I grew up in Maine and my love for the Sox was passed down from my grandparents.


      • And here I was hoping that comment would draw the rest of the Yankee fans out of the woodwork… I guess that backfired.
        Anyway, you didn’t choose to be born in New England, and I understand that you just can’t help yourself when you root for the Sox. I inherited my love of the Yankees from my dad. So–peace!

    • Yeah, I ranted about that to one of my co-workers. Thankfully there’s very little to no chance that the judge will grant this motion.

  2. i just saw the times of harvey milk. and now i’m just super fucking pissed. jesus fucking christ, i hate these people.

  3. what an idiotic train of thought. i can’t believe people actually get away with this crap.

  4. My God… I don’t want to offend any of you, but the double standards of the US are just unbelievable sometimes.
    Amazing. It’s like the only citizens who matter are white, straight males, and fuck the rest of the population. Seriously, it’s incredible.

    • Well, it’s not really the double standards of “the US”–it’s the double standards of a small group of bigots.

      • Well, maybe that’s true, but I swear that’s NOT how it’s perceived from abroad. I’m not going to say everybody in the US has double standards, but a big part of the population does. Or that’s what an external observer perceives. Maybe they are less than it seems, but they make a lot of noise? I don’t know.

        • Well, yeah, I know how the US is perceived abroad (I actually lived in Spain for a while), but perception does not equal reality.
          Plus, it’s unclear who you’re referring to here. By “the US,” do you mean, “the American people”? Because the US is a large and diverse country, and it’s impossible to generalize about what Americans, as a group, think. Do you mean, “the American legal system”? Because I can tell you with a fair amount of confidence that the American legal system does not endorse this kind of double standard–I’m pretty sure this appeal is going to get rejected.
          I don’t mean to jump all over you, but as an American who has lived (and is living) in a foreign country, I hear these kind of generalizations all the time. All countries have their problems–it gets pretty old hearing people talk about the US as if it’s the only country that has problems with racism/sexism/homophobia/whatever.

          • lol I’m Spanish, actually.

            Okay, let’s start saying that I meant what I said; I didn’t want to offend anyone. I’m sorry if I did. I’ve been to the US, I love it, and I have many friends there. What I’m talking about here… Well, I think it’s a cultural thing.

            With my comment I was referring to that sector of the population that speaks all self-righteously and then does the opposite in private. I meant the people who preaches against something and then secretly engage in whatever they were preaching against, or in something of the same characteristics. You have had a few famous cases lately. I seriously encounter, like, four or five of those american folks every fucking day on the internet. And a lot less american people talking back at them. Maybe that’s why I draw conclusions.

            Then there are other things… Cultural things that bug me and that I seriously can’t understand, though I kinda tag them as “cultural diversity” and move on. For example, someone bashing a woman for dressing in a provocative way while letting their kids shoot a gun. Or someone using religion to attack gay people while raising an out of wedlock son. I go to a extremely religious college (ever heard of the Opus Dei? They run my college), and I swear I don’t hear those kind of comments even here.

            I don’t know. There are cases of extreme stupidity in my country too, but when it comes to discrimination, I really think we’re a little ahead of you guys. That has been my experience, both on the internet and on my visits to your country. I’m not saying I’m right, and I’m certainly not trying to make generalizations (though I kinda did in my first comment, for what I apologize; it totally came out the wrong way). It’s just that I have this perception that white, straight males have more opportunities than other sectors of the population, which throws equality to the garbage.

          • I knew you were Spanish from your profile–that’s why I mentioned that I’d lived there!

            I would never deny that there are people in the States who embody those horrible cultural stereotypes that you’re talking about. They exist, they’re horrifying, and they get a lot of news coverage. But they don’t define Americans. Like I said before, America is a big, diverse country, and you can’t make generalizations about what Americans are like. Sure, some people are attacking queers while having out-of-wedlock children. But most people aren’t. There are all sorts of progressive, cosmopolitan, generally great people in the States–we’re not that hard to find–and yet, somehow, we’re always the exceptions, never the “real” Americans. It sounds like you have American friends who aren’t hypocritical bigots–why don’t you think of them when you think of Americans, as a group?
            And I think that it’s generally pointless, and impossible, to compare entire countries, in terms of “equality.” In terms of legal equality, maybe, but there’s so many people in a country, and every country has it’s racist bigots. You say that you think Spain is ahead of the US in terms of discrimination, but there’s a huge amount of anti-immigration bigotry in Spain (just like in the US), and I’ve never experienced more casual anti-Semitism or street harassment than I did in Spain. You think straight white men have more opportunities in the States–of course they do! That’s true EVERYWHERE.

          • I already apologized for the generalization and said I didn’t mean it that way. ;-) I really, really didn’t intend to make a general statement. For me, it’s difficult to get my point across when English isn’t my first language.

            BUT what I said in my prior comment is what I have encountered. I want you to know that I’m not talking from what I’ve heard, or from what it’s usually said about the US. I’m talking from what I have experienced whenever I’ve gone to the US, from what my american friends have told me, from what I learnt in my american culture seminar at school, and from what I’ve seen on the internet. Maybe I’ve had very bad luck in that regard, but seriously, that’s what I’ve seen. However, I’ll take your word on this because you undoubtedly know better than I do. As I said, I must have had very bad luck.

            What I meant when I said that Spain was a little ahead of you when it comes to discrimination was that we have way less cases here, and they are immediately stopped and punished. I don’t think that what’s described in this article would ever happen here, for example. Of course there’s homophobia here, like everywhere else. But socially it’s way less tolerated, or that’s what my LGBT friends tell me. Half the happenings AS reports here leave me open-mouthed, because for me they are inconceivable.

            By the way, I’ve lived my entire life in different regions of Spain and I’ve never encountered any kind of street harassment, or at least nothing that would happen normally (except fights between latin american groups), just random muggings and not a lot of those. Where in Spain did you live exactly? I’m not saying you’re lying or anything, I’m just curious.

            Lately, there’s been a little of anti-immigration bigotry in Catalonia’s politics, but we were the only country that offered official documents for illegal immigrants working in our country. We were one of the first european countries that offered same-sex marriage (actually, I think we were a few days ahead of Canada). We have one of the most progressive legislations for the LGBT community in terms of adoption and sex change. We have homosexuality in the military without a DADT, we have open homosexuality in the Guardia Civil, and even in the priesthood. Our anti-discrimination laws are very strong and they keep getting stronger.

            But seriously, let’s stop here, because I don’t want this to become a fight about which country is better in terms of equality. That’s never been my intention either, and we probably would never reach an agreement on that. It’s only normal that each one of us would favor our respective countries… ;-)

            I apologize again if I offended you or anyone else here, it really wasn’t my intention. I love the US and I love my friends there. I can’t wait to visit your country again. ;-)

          • “It’s just that I have this perception that white, straight males have more opportunities than other sectors of the population, which throws equality to the garbage.”

            Sometimes perception exactly equals reality. But it’s not only true in the US.

          • I never said that notion was something that happened only there. My point is that I’ve seen it more there than anywhere else I’ve visited.
            But I don’t want to insist, and I seriously didn’t want to offend anyone. :-)

    • Yeah, also, I’m not sure where you’re from but basically everywhere has major issues of this sort about race/religion/sexuality/whatever. Not that the US is THE BESTEST PLACE EVAR and this totally sucks and I hate these stupid double standards, but talking about just the “double standards of the US” as if nowhere else has similar issues seems a bit unfair.

      • yeah. i’m not american and i can attest that idiocy isn’t an american privilege. but i guess the prominent worldwide political/military position makes their asshattery slightly more obvious.

        • I agree. Stupidity and asshatery are not confined to the United State’s borders. However, there is something to be said about the increasingly polarizing notion of “american exceptionalism”. The overturn of Prop 8 would be a step in the direction of the US (or at least a fraction of her judicial system) that says we still have progress to make and maybe these states and countries that have some sort of same-sex marriage privileges have a positive political nuance to teach to the US.

        • Right. If America wasn’t so influential in the world, such a force culturally, politically, militarily, and socially, and if it didn’t claim to have such a heavy responsibility in the global community (while being undoubtedly US-centric), then we could easily dismiss anyone saying that US has double standards. But it’s easy for a country that asserts itself in every arena to be closely scrutinized for its fuckups–which as a working class QPOC american, I can say it DEFINITELY has been more obvious. You cannot always separate the government and the legal system of a country from its citizens; ultimately it’s the citizens who are responsible for putting people into the office…

          This is also terrible; his sexuality should NOT be put on trial. It’s ridiculous.

  5. Now that I’ve thrown my chair against the wall and screamed at my bookshelf, maybe I’ll be able to make some form of intelligible contribution.

    Not that this shit warrants it.

    This is so so fucking cynical and base, it just blows your mind. I’m glad the law makes this sort of appeal completely and utterly invalid. Small favours.

  6. This is longish but you can read it if you want to hear how the hearing went, which will hopefully make you feel somewhat better about it.

    I was at the hearing, and it was basically a day of the other side’s lawyer being put into one of those old big metal garbage cans and being rolled down Lombard Street. At one point, after the judge asked the Bad Lawyer a very clear and straightforward question &he just wandered around in a verbal thicket for a while and then said something that was neither really helpful to his side or remotely responsive to the question, the judge said, “I think I hear me. I recognize my voice. I don’t think you hear you.”

    The judge asked the Bad Lawyer a lot of unfortunate-for-them questions about whether a judge who had suffered gender-based violence should have to recuse herself from any future cases involving gender-based violence, or whether a person of color should recuse themselves from civil rights cases, or such. It was clear that the judge did not think that those hypothetical judges were disqualified from making fair and reasonable decisions, and it was fairly clear that the judge was making analogies in his head between those cases and the case of Hero Judge Walker, and every time the Bad Lawyer was asked one of those questions all the muscles in his face sort of relaxed like he’d been tranquilized, and then he thought very hard and then he said something else that wasn’t an answer to the question. And he just made the incoherent fool of himself that he usually does.

    So, yes, it was a nauseating motion brought by a deeply unpleasant bunch of people, but it was a nauseating motion which had a very very bad day, and will hopefully help build better law while making the wicked people look as incoherent and stupid as they are.

    And I got to ride in an elevator with a bunch of the plaintiffs, which very nearly gave me an attack of the vapors. And self and fellow interns got to go to the taco truck after with the City Attorney who argued the motion for San Francisco, and she looked like you’d expect a Good Lawyer to look when they got to spend the day watching the judge roll the Bad Lawyer down Lombard street in a big metal garbage can.

    • Oh, good, thanks for letting us know how it was! I’m so jealous you got to be there.

      • I just procrastinated by reading the court order. This is my life. Now I wanna share the juiciest language that was in it, f’r the people who make the very reasonable decision not to read the whole thing. (Isn’t all that juicy by Human standards but by Judge standards it’s some hot stuff).

        Anyway, Judge Ware, in the course of throwing the Bad Lawyers’ motion out, sez: “…a fact is not necessarily a basis for questioning a judge’s impartiality merely because that fact might lead a segment of the public to question the judge’s impartiality. Reasonableness is not determined on the basis of what a particular group of individuals may think…”

        Which is pretty tame, but in judge-world that’s as close as one gets to “go shit in a hat &wear it.”

        (At the hearing, there was a lot of noise about the “reasonable person” standard (most subjective standards get judged based on what the ‘reasonable person’ would think, and yes that standard is, in practice, as dumb and mystifying as it sounds) and after a long time listening to the Bad Lawyer ramble about what he thinks that reasonable people think about The Homosexuals, the judge said, “Is the reasonable person a bigot?” and the Bad Laywer had another one of those moments where he lost muscle tone in his face. The chunk of the ruling I quoted above is, I think, the upshot of that question-and-lack-of-an-answer).

  7. If they rule a gay judge can’t rule on a gay right’s issue, this will have serious repercussions. I hope reason, logic, sanity and goodness prevail. Gah, now I’m nervous.

  8. Sanity:
    “Ware did not disclose how he would rule, but many of his comments during arguments suggested he would rule that retired Judge Vaughn R. Walker was not required to step aside when he was assigned to hear the Proposition 8 challenge.”

    “Maybe in the end this hearing will be a good thing; maybe it will create some kind of precedent that can protect future judges and future decisions from the same attack. Maybe this will, in a roundabout way, make it safer to be an out gay judge.”
    Yes to this twofer please!

    Prop 8 backers: a greater evil than impersonators.

  9. You know, they would have a problem if he were straight too. Their real problem is that they’re getting opposition for prop 8. The judge being gay is simply coincidental I believe, unfortunately it’s convenient enough to give them an opportunity to fight for prop 8 by arguing that the gay judge was seeking his own interests, and only a straight judge in his mercy could give a proper, unbiased ruling.

  10. This case is just the normal process of exposing bigotry, like a boil, with all its pus and bacteria to healing effect of open air and sunlight.

  11. Fuck Prop 8.
    If yah ain’t gay, don’t marry your gender!
    It’s as simple as that.
    I guess they’re worried that if same-gender couples could marry, they’d be outrun, and the population would dramatically decrease, forcing them to move to Africa.
    But by all means, they should go.
    I don’t mind if prop. 8 supporters move to Africa.
    Maybe they can make a new state called “ignorant assholes”.

    • “I guess they’re worried that if same-gender couples could marry, they’d be outrun, and the population would dramatically decrease, forcing them to move to Africa.
      But by all means, they should go.
      I don’t mind if prop. 8 supporters move to Africa.
      Maybe they can make a new state called “ignorant assholes”.

      ^Head meet desk.

      Africa (the continent) has more than enough of people (from Western backgrounds) moving in with their bigotry towards homosexuality.

      I say they should go to the moon.

      • That strikes me as a waste of a perfectly good moon. I say they should get over themselves and be more accepting, but that’s probably just silly.

    • ’cause the entire COUNTRY known as Africa is where homophobes and people opposed to gay marriage should live?????

      Being angry and impassioned is not an excuse for thoughtlessness.

  12. There’s definitely a self-perpetuated idea that being white and male and straight is the default setting. Any moment you stray from the default, you’re not “neutral” anymore – not a white sheet of paper, for instance, but rather a red one or a rainbow one or one with an asterisk or one with a wrinkle.

    It’s like they can’t understand that if anything, we all begin as clear sheets of paper and being white is a color, being male is a wrinkle, and being straight is an asterisk. It’s time we changed that.

    • thirded. Listening to NPR and hearing them make the comments about can a woman judge sexual violence, can a black man judge racism, I started getting angry at NPR, which I almost never do, because they weren’t pointing out that a man or a white person has their own biases too. And then I got to AS and Rachel mentioned this and you expanded on it and… ah. Autostraddle makes me feel like I’m not crazy, it’s just the world that is.

      • exactly! And any comments on bias w/r/t gay stuff seem to always stop right after bringing up women and black men. What about muslims, native americans, war veterans, hispanics/latin@s, pagans, handicapable people, and a million other minorities that bring other, just as if not more significant biases to the table??

        Yeah, I get mad at NPR too, occasionally…

  13. thanks for the post, Rachel. eloquent and awesome as usual. i am so fucking angry about this.

  14. So apparently, all of those court cases involving straight people should have been ruled on by gay judges. So Judge Walker should be busy forever.

  15. Judge Walker should pretend to be a lesbian. I hear people take you more seriously that way.

  16. the only logical response to this idiotic line of argument is that if gay people can’t make judgements on gay rights issues because they might be biased in favor of gay rights, then straight people can’t either, because they might be biased against: one should therefore only ever have bisexuals judge gay rights cases.

  17. Haters lose!!!

    “The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification…”

Comments are closed.