Can Prop 8 Decision Be Separated From the Sexual Orientation of Judges?

(Aug. 5) -- Critics of "activist judges," start your engines!

A developing subplot to Wednesday's ruling by U.S. District Court Judge Vaughn Walker that overturned California's Proposition 8, which prohibited same-sex marriage, is that Walker is himself reported to be gay.

During the case, articles in publications ranging from the San Francisco Chronicle to the conservative website World Net Daily raised the issue of how Walker's sexuality would, or would not, affect his decision.

After Wednesday's outcome, the topic bubbled up again. An editorial on the website My Auburn California argues that Walker should not have taken the case at all.

"Imagine a judge who owned 5 million shares of stock in a company ruling on a lawsuit involving the company," a blogger who goes by the screen name Gold_Panner wrote. "It would be considered a 'conflict of interest' would it not?" The blogger added: "Why did [Walker] not recuse himself?"

The writer did not explore why a married straight judge would not face a similar conflict-of-interest question on grounds that he or she might be similarly biased to rule against gay unions. But now that the case may well be headed for the U.S. Supreme Court, the same debate over a justice's perceived sexual orientation could well come up again.

Rumors that soon-to-be-confirmed justice Elena Kagan might be gay swirled through the online and mainstream media even before President Barack Obama nominated her to become the fourth woman to sit on the high court. (The chatter reached such a volume, in fact, that the White House itself directly addressed the rumors, telling reporters that Kagan had volunteered the information that she is attracted to men.) But the California ruling means this story might not be over yet.

Back in early July, in an op-ed in The New York Times, Brookings Institution guest scholar Jonathan Rauch looked at the eventual passing of the Prop 8 baton from Walker's courtroom to one where Kagan will soon serve, and cited a portion of Kagan's testimony before the Senate Judiciary Committee in June as a clue to how she might eventually rule:

"The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect choices made by the American people."

For Kagan's critics, however, there's no question of how she will judge on matters of gay rights.

Maggie Gallagher, president of the Institute for Marriage and Public Policy, put the matter in stark terms. "A vote for Elena Kagan is a vote for finding a constitutional right to gay marriage that will overturn marriage laws in every state," Gallagher said.

Kagan's confirmation is expected to come today. There are several hurdles that an appeal to Judge Walker's ruling would have to go through before the Supreme Court takes up the case. But if circumstances alight, this fight will go another round.

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