Wednesday, June 15, 2011

Not Impartially Impaired

In what seems like a rather obvious ruling, a California judge has ruled that a gay judge did not have to recuse himself from a case involving same-sex marriage.

U.S. District Chief Judge James Ware ruled that retired Judge Vaughn R. Walker, 67, who is openly gay, was not required to remove himself from the same-sex marriage case because he has a long-term partner.

“It is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings,” Ware wrote.

The ruling also suggested that Walker had no obligation even to disclose his personal relationship with his partner.

If Walker had revealed “intimate but irrelevant details of his personal life” to the litigants, he could have “set a pernicious precedent” for other judges by promoting disclosure of highly personal information, Ware said.

Ware’s decision was in line with other cases involving challenges of judges based on race, gender and religion.

“The notion that judges cannot be attacked based on their membership in a minority group has now been reaffirmed in the context of gay and lesbian judges,” said Theodore Boutrous, who argued the case for two same-sex couples challenging California’s gay marriage ban. “I think people will be citing this decision for many years.”

It also raises the rather obvious question: if Judge Walker had been removed from the case simply because he is gay and therefore presumed to be prejudiced in favor of same-sex marriage, who’s to say that a straight judge wouldn’t have to be removed from the case because he or she would be prejudiced against it?

PS: This seems as good a place as any to post the fabulous opening number from last Sunday’s Tony awards.