The Miami Herald

Who has the right to judge?

 
Proposition 8 opponents Jovanie Narvaez, back, and his partner Mark Vaccarino embrace each other during a gay marriage rally Wednesday, in West Hollywood, Calif. A federal judge overturned Proposition 8 Wednesday finding it to be unconstitutional.
BRET HARTMAN/AP
Proposition 8 opponents Jovanie Narvaez, back, and his partner Mark Vaccarino embrace each other during a gay marriage rally Wednesday, in West Hollywood, Calif. A federal judge overturned Proposition 8 Wednesday finding it to be unconstitutional.
He had no right to judge.

That, in a nutshell, is the gist of last week's uproar over a ruling by Vaughn Walker. Walker is the federal judge, originally appointed by Ronald Reagan and generally regarded, according to the Associated Press, as ``a conservative with libertarian leanings,'' who struck down Proposition 8, California's ban on same sex marriage.

It turns out there is a rumor -- never confirmed or denied -- that Walker himself is gay. That has launched proponents of the ban into a full-fledged tizzy.

Maggie Gallagher, chairwoman of the National Organization for Marriage, blasted him as ``an openly gay federal judge . . . substituting his views for those of the American people and our Founding Fathers . . .''

Bryan Fischer of the American Family Association called for Walker's impeachment and said the jurist should have recused himself because ``his own personal sexual proclivities utterly compromised his ability to make an impartial ruling.''

Matt Barber of something called the Liberty Counsel accused Walker of ``extreme bias in favor of his similarly situated homosexual activist plaintiffs.''

And so on.

According to this line of ``thinking,'' a homosexual may competently judge a traffic dispute or an assault charge, but not anything having to do with, well . . . being a homosexual. For that, you need a judge who is as straight as the crease in George Will's pants.

But there is a hole in that ``logic'' wide enough to dance the Rockettes through. Every individual is a compilation of culture, experience, opinions, emotions and personal biases, so every judge brings baggage to the table.

But we trust a judge to put that baggage aside and decide an issue on its merits. You don't ask him to recuse himself unless something he has said or done suggests a conflict of interest.

Walker's critics judge him biased not because of something he's said or done, but because of something he supposedly is. By that logic, we must consider every heterosexual judge who ever ruled against gay rights as biased. Indeed, that reasoning would require women judges to recuse themselves from cases with women plaintiffs, Jewish judges to abandon cases with Jewish defendants, white judges to leave cases tried by white lawyers.

Nor is that remote and abysmal possibility what's most offensive here. No, what truly rankles is the implicit suggestion that only straight people can fairly and dispassionately judge when and if gay men and lesbians should be granted equality -- and that straights have an unquestioned right to make that judgment.

It's a theme that recurs whenever one group seeks freedom and another bars the way. Whether we are talking men and women, whites and blacks, or immigrants and the native born, there is always this hubristic notion that one group has the God-given right to set the terms and timetable by which another will be free.

Consider what John Wayne said in 1971 when Playboy asked him about discrimination against blacks. ``I believe in white supremacy until the blacks are educated to a point of responsibility,'' he told the magazine. ``I don't believe in giving authority and positions of leadership and judgment to irresponsible people.''

In other words, when black folk passed muster with the Duke, they could be given the rights the Constitution said were theirs from birth.

You hear echoes of that paternalism in Maggie Gallagher's suggestion that gay and lesbian freedoms are subject to the will of ``the American people.''

But freedom that can be taken at a whim is not freedom at all. And to whatever degree they believe themselves entitled to that whim, the American people deceive themselves and dishonor their heritage.

Gay men and lesbians want to be free.

And it's the rest of us who have no right to judge.




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