LOGO: Truthdig: Drilling Beneath the Headlines. A Progressive Journal of News and Opinion. Editor, Robert Scheer. Publisher, Zuade Kaufman.
2010 Webby Award Winner for Best Political Blog
 
February 20, 2012
Log in / Register

 Choose a size
Text Size

Most Read

Acts of Love

OWS Calls for May Day Strike

Ideological Hypocrites

Krugman to Playboy: Economic Crisis 'Doesn't Have to Be Happening'

When Iran Talks Back

Most Comments
Most Emailed

Reports
 * NEW! * Acts of Love
 * NEW! * Ideological Hypocrites
The Lowdown on Fracking

Ear to the Ground

A/V Booth

Arts & Culture
Déjà Pooh

Digs
Financial Meltdown 101

Truthdig Bazaar
God Is Back

God Is Back

by John Micklethwait and Adrian Wooldridge
$18.45

more items

 
Reports

Don’t Ask, Don’t Judge?

Email this item Email    Print this item Print   

Posted on Feb 10, 2010

By Ruth Marcus

Does it matter if the judge hearing the lawsuit challenging California’s ban on same-sex marriage is gay? Would his sexual orientation interfere with his ability to render an impartial judgment in the case, or the public’s confidence that he could decide the case fairly? The San Francisco Chronicle has reported that “the biggest open secret” in the challenge to Proposition 8 is that Chief U.S. District Judge Vaughn Walker “is himself gay.”

Not surprisingly, gay rights groups say they have no qualms about Walker’s ability to separate his personal life from his professional judgment. “There is nothing about Walker as a judge to indicate that his sexual orientation, other than being an interesting factor, will in any way bias his view,” Kate Kendell of the National Center for Lesbian Rights told the Chronicle.

Not surprisingly, those supporting the marriage ban are muttering about Walker’s alleged favoritism to the gay plaintiffs. “He’s been an amazingly biased and one-sided force throughout this trial, far more akin to an activist than a neutral referee,” the National Organization for Marriage said.

Not surprisingly, except for this magnificent irony: When he was nominated for a judgeship by President Ronald Reagan, liberal activists attacked Walker for, among other things, alleged anti-gay bias. He had represented the U.S. Olympic Committee when it sued a group for using the name Gay Olympics, and was also criticized for belonging to San Francisco’s all-male Olympic Club. His nomination was stalled for two years.

Back then, the liberal argument against Walker was that he could not judge fairly—or be perceived to judge fairly—because of his personal life. As San Francisco lawyer Abby Ginzberg argued in testifying against Walker’s nomination, “For civil rights ... litigants who have been forced to turn to the federal courts time and again to seek enforcement ... the prospect of appearing before a judge who is a current member of the Olympic Club, or who traded his membership for a judgeship, does little to inspire confidence in the federal judiciary.”

Advertisement

So were liberals right then, when they argued that the judge’s personal situation was relevant, or now, when they contend it is immaterial? Situational ethics aside, what is the right way to handle the case?

You’re seeing a lot of question marks so far because this one is more difficult than it first appears. My instant reaction was that Walker ought to be free to hear the case. That remains my bottom line, but not without some squirming. No one would question an African-American judge’s capacity to preside over a race discrimination lawsuit or a female jurist’s handling of a sexual harassment case. In the Proposition 8 matter, a straight judge would bring his own preconceptions to the courtroom, and no one would challenge his impartiality.

But I’ve argued against the notion of judges as impartial umpires mechanically calling balls and strikes, as Chief Justice John Roberts memorably put it. In many cases, a judge’s background and life experiences inevitably come into play, especially in deciding the meaning of the grand phrases of the Constitution. This is why we have judges, not well-programmed computers.

So when Walker considers claims that the ban on same-sex marriage violates the constitutional guarantees of equal protection and due process of law, it’s hard to imagine that his sexuality, if he is gay, does not influence his decision-making—just as the experience of having gay friends or relatives would affect a straight judge. Justice Lewis F. Powell Jr., who cast the deciding vote in favor of upholding Georgia’s criminal ban on gay sex, famously told his colleagues, including a gay clerk, that he had never met a homosexual.

Walker was randomly assigned to hear the Proposition 8 case. In uncomfortable circumstances, he made the right choice to remain. The alternative would invite too many challenges to judicial fairness—Jewish judges hearing cases about Christmas displays, or judges who once represented unions or management presiding over labor disputes.

In this case, I hope the plaintiffs win and that Walker rules that the same-sex marriage ban violates their constitutional rights. At the same time, I’ve got to acknowledge: If I were on the side supporting the ban and found it struck down by a supposedly gay judge, I’d have some questions about whether the judicial deck had been stacked from the start. 

Ruth Marcus’ e-mail address is marcusr(at symbol)washpost.com.

© 2010, Washington Post Writers Group


Comments

Are you a Truthdig member yet? Login now, or register with Truthdig.

drbhelthi's avatar

By drbhelthi, February 16, 2010 at 4:17 am Link to this comment

I find it interesting how some propagandists attempt
to speak for everyone. Obviously, some are not
acquainted with the investigative method, and do not
comprehend what a “starting point” means. Nor are
they acquainted with information on the internet
that has been published by verified authorities. 
For example, some propagandist-types continue to
spread the propaganda that an airliner flew into the
Pentagon. Former MajorGeneral Stubblebine, former
chief of Army intelligence published a video in
which he explained that no airliner flew into the
pentagon.

Oh well.
Propagandists are paid to belittle the
truth, scapegoat purveyors of truth and suck-up to
their masters.

Report this
RAE's avatar

By RAE, February 15, 2010 at 5:10 am Link to this comment

Two questions, drbhelthi, if I may.

Before I dismiss your posting as glib opinion or untested assumption, or, for that matter, propaganda itself, I need to know:

1. WHO, specifically, are the propagandists to whom you refer. General broadsides without supporting and verifiable specifics are simply not helpful to an accurate understanding of any claim.

and,

2. re “CIA agents and NAZI sympathizers altered
historical records of more than one thousand
persons in the USA and Germany”

I, for one, cannot accept your allegation as factual without verifiable detail. When I receive answers to who, what, when, why, where and how, I will revisit your posting with some seriousness.

If you cannot provide supporting evidence and references to back your charges then, legally and academically, your information is not only considered invalid, but completely useless as a starting point for those who would like to pursue the issue further. In other words, your posting is disrespectful of the intelligence and time of those whom you wish to inform and/or inflame.

Report this
drbhelthi's avatar

By drbhelthi, February 15, 2010 at 1:49 am Link to this comment

Political propagandists can generate whatever
“closet” information they consider useful.  Consider
one of the worst examples in the recent history of
the US.  CIA agents and NAZI sympathizers altered
historical records of more than one thousand
persons in the USA and Germany, pursuant to
Operation Paper Clip. This, not to mention the
forty-first US “president,” and perhaps
currently, Mr. “Hussein Obama.”

Propagandists could generate “anti-gay” propaganda
in the 1980s, just as they can generate “pro-gay”
propaganda in 2010. Just as they have “doctored” the
birth, death, and college attendance records of several
thousand persons.

Report this

By 20yearnavyvet, February 13, 2010 at 11:46 am Link to this comment
(Unregistered commenter)

To DaveZx3:

While I can appreciate your honesty in stating that you are a homophobe, I have to say that your argument, in my mind, is flawed.

The case here is not about sexual behavior or activities.  This case is about equal rights and priveleges, period.  At no point has anyone, anywhere, ever said that this is about “indoctrination” or anything else.  That is just an argument that has been used to spread fear and misinformation to maintain the status quo.  For so long the idea of keeping the government out our personal lives has been championed by the conservatives and right wing and yet, at the same time, they would state that they have the right to deny someone equal protections and priveleges based on their personal lives.  It is hypocritical, at the very least.

You state that you are doing extensive studying and research on the subject yet you do not state what materials or sources you are using for that research.  I’m sure that I can find enough materials to support the case against whatever you propose and offer up as proof.  It is important to consider the source and it is also important to take into consideration opposing views and research if you are to make an informed decision.  As you have already stated your misguided bias, it is quite obvious your mind is already set to dismiss whatever you find that may be counter to your line of thinking.

As for your concept of majority rule, that is flawed as well.  Following your line of thinking, if the majority of residents in a particular state is, say, Islamic, you believe that they could decide that any Christian could be denied certain rights based on a majority vote?  That whites can deny non-whites certain rights based on a majority vote?  I use those two examples because the religion you practice is a choice, your race is not.  The Constitution is based on the premise that a majority cannot deny a minority basic rights and priveleges nor force any particular belief on the minority.  That ALL are equal under the law.  I realize that that does not sit well with you but that is the reality.

It is amazing, that in this day and age, the one driving force behind your thinking, and those who think like you, is that homosexuality is all about sexual behavior and nothing else.  That being the case, then that means that heterosexuality is all about sexual behavior and nothing else which would mean the all the arguments about protecting the sanctity of marriage, family and morality are all pointless.  It’s all about sex.  People like you demean and negate what a relationship involves if that is your major focus.  I understand that as a homophobe you cannot conceive of two men or two women having a meaningful relationship that happens to include sex but, in reality, that is what it is.  As for risky behavior, well, that is not limited to the homosexual lifestyle and thus I would be interested to hear from you who would be the judge of what would/should be covered by any healthcare benefits.  Assuming, of course, there are any to begin with.

Again, I appreciate your honesty in stating your bias from the beginning.  I believe that your research will be biased and flawed in order to support your base thinking and your arguments in favor of making exceptions to the Constitution.  As a gay man and as a veteran of 20-years of defending the Constitution of the United States, I will continue to speak out and fight for the rights guaranteed to all.

Report this
RAE's avatar

By RAE, February 13, 2010 at 10:47 am Link to this comment

Well, DaveZx3, I must congratulate you for having the sense of fair play to at least learn about the topic instead of just airing your ignorance as so many do.

You will learn, from authoritative sources, that many of your assumptions about the source and nature of homosexuality are incorrect.

For example, you will not find authoritative support for your allegation that “We are not born with sexual preferences, but we learn them from our environment and experiences.” Read the scientific literature published by dozens of leading researchers around the world. Even without such documentation such an assumption makes no sense. How would any child LEARN to be a homosexual from his/her parents, school or religion, and even if such a preposterous notion was true, WHY would anyone then CHOOSE to be homosexual given all the grief the “majority” is prepared to give them?

Human sexual orientation"S” range NORMALLY from one extreme to the other, and apparently, always have. Why? I don’t think anyone knows but give or take a few percentage points, about 10% of humans (and many other mammals) are predominantly homosexual.

You spend a good deal of space focusing on “the dangers of unnatural sexual activity.” There is no such thing. Just because what is not “natural” to you doesn’t mean it isn’t natural for others. This isn’t a phobia… it’s out and out prejudice.

That said, exchanging bodily fluids, NO MATTER HOW, is a dangerous practise. Any intimate act, from a friendly kiss right on to as far as your imagination will allow you to go, carries with it a risk of disease and/or injury (to say nothing about pregnancy). So what do you propose? Outlaw any risky behavior just so long as it isn’t one that YOU enjoy? C’mon… even you aren’t that anal (if I may use the expression.)

To cut this shorter: the “facts” that you seem to think are “clear” are simply not facts, as you will soon learn in your research.

To your other point:

“What the hell do people think democracy is?  It is the majority rule.  The minority will always get the short end in a democratic vote.”

Majority rule = Mob rule

Is that the kind of society you want to live in?

You are quite correct to state that “rights issues” should not be subject to the whim of a vote, whether of all the people, or their elected representatives. The Constitution and other Bills of Rights, nationally and internationally, GUARANTEE TO ALL certain “inalienable rights.” These should NEVER, EVER be allowed to be toyed with by ANYONE from the President on down. NOT EVER. That’s what “inalienable” means.

The “majority” has no right to give or not give the right to marry to non-heterosexual people. The “majority” has no ownership of that right to begin with. It’s a right of ALL PEOPLE. Nothing could be clearer.

Report this

By DaveZx3, February 12, 2010 at 11:09 pm Link to this comment

I’m a homophobe.  I am afraid of a small minority having excessive influence over the educational system, and using that influence to indoctrinate school-age children regarding homosexuality and other sexual activity, as though it was completely natural, while completely disregarding the extreme hazards of some forms of unnatural sexual practices.

I am not against rights.  But I am unable to make the connection between rights and risky behavior.  If there is no genetic connection to homosexuality, then it must be learned behavior, as is all sexual behavior.  We are not born with sexual preferences, but we learn them from our environment and experiences. 

There are thousands of ways to have sex, and people choose to do what they want to do, sometimes to their great peril, such as the kung fu guy, David Carradine, who died a few months ago.  Beyond that, it would not be unusual to develop strong attraction for that which gives one great pleasure.  These are all choices one makes.  But one of the biggest lies perpetrated is that there is some type of obligation to act on every sexual fantasy that we might have. 

I would not deny the right of consenting adults to engage in risky sexual activity in the privacy of their own space, but I would deny the right of anyone to proselytize about this lifestyle amongst school age children, especially without addressing the dangers.  I would also deny that I should have to pay, through taxation or insurance premiums, for the consequences of any activity deemed risky by the CDC.  (I am sure that no one needs me to recite the CDC reports on the dangers of unnatural sexual activity, homosexual and hetrosexual, as it is readily available.)

The democratic process in the US cannot constitutionally abridge human rights, as we all agree.  But the democratic process can legally outlaw the misleading of the population into risky, or unhealthy behaviors.  In my opinion, legalizing the marriage of homosexuals would constitute government endorsement of unhealthy sexual practices. 

I am sure that when national healthcare is finally realized, there will be government restrictions or exclusions on high risk behaviors, such as smoking, alcoholism, drug abuse, etc.  Will risky sexual activity be among them?  Or will society have to subsidize the higher medical costs of risky behavior?  With money in short supply, I suppose there will be some heated arguments in these areas.

With regards to the challenge to Proposition 8, Chief U.S. District Judge Vaughn Walker is damned if he does and damned if he doesn’t.  Democracy has already spoken in California, but has been deemed to deny the rights of the minority. 

What the hell do people think democracy is?  It is the majority rule.  The minority will always get the short end in a democratic vote.  Why do citizens put things up to proposition if they are not willing to live with the wishes of the majority?  If it was a rights issue, it never should have been voted on, because the vote would have been meaningless.  We don’t live in a democracy, but a republic. 

So if Walker, as a homosexual, rules against the democratic voice of California, will that end the issue?  I think not.  It will elevate the case.  I do not see how the courts cannot eventually rule in favor of the democratic voice of California, especially if homosexuality is judged behavioral rather than genetic, and the CDC connections to higher disease risks is accepted.

So yeah, I’m a homophobe.  I am afraid of all scenarios where a small minority can jerk the majority around against their will, and make the majority pay for the jerking as well. 

But there is a cure for phobia.  You find the source of it and confront it.  And this is what I am doing.  I am reading up on the subject extensively.  The issue is coming up in my home state, and I am going to be prepared to deal with the facts.  So far, the facts seem to be quite clear.

Report this
RAE's avatar

By RAE, February 12, 2010 at 4:25 pm Link to this comment

Well, DivinePoet, if you have a passion to research and write on the topic then that is what you must do.

It would be interesting to learn if the upper classes in your country “deal with” the reality of homosexuality amongst themselves any differently than say, the upper class British have done over the centuries. Perhaps a compare and contrast amongst several cultures would make an enlightening piece.

It’s a strange planet. In some societies I’ve read that same-sex relationships are simply taken as normal behaviour hardly worthy of comment while in other cultures to be caught means a death sentence. I’m almost certain that serious research will confirm that whatever the attitude - IT’S LEARNED, not natural.

As the saying goes…“you’ve got to be taught to hate.” The question to be answered is WHY? What is gained by a society when it perpetuates such a prejudice?

Report this

By Divinepoet, February 12, 2010 at 6:38 am Link to this comment

Dear RAE, Thanks for your advice and suggestions. I have decided to complete the manuscript soon. Than I may look for a publisher abroad. What do you think of my idea. Please do not hesitate to forward your vlued opinion. Extend your hand to rescue your brother writer from a third world country.

Report this

By keepontryon, February 12, 2010 at 5:08 am Link to this comment

When cases go to the court, lawyers always know that it makes a big difference as to which of several judges is assigned by a ‘fair’ and random choice means. The ‘luck of the draw’ is a fact of life in many ways, but when in the court,its play is seen to be greater because it is!

You win some and you lose some. Appeal when it makes sense!

Report this

By C.Curtis.Dillon, February 12, 2010 at 3:06 am Link to this comment

I guess my question is: would a straight judge be any less inclined to make a biased decision in this case?  He carries his own perception of gays vs. straights so why should we be any more willing to trust his judgement?  If this judge is fair and impartial, we must trust his understanding of law and rights.

Report this
G.Anderson's avatar

By G.Anderson, February 11, 2010 at 6:46 pm Link to this comment

“Perhaps… it never entered the minds of those who originated the wording and laws relating to marriage that non-heterosexual people might want to marry and have access to all the “benefits” of such a legal status. Perhaps.”

Be real for a moment.

There is a long history of purposful discrimination against gays, going back, to the dawn of time, this is why the bible is often quoted as a justification against gay marriage. The very idea, that this was an oversight by those who created marital laws, lacks any sort of common sense.

It was done on purpose. With grevious intent.

For most people reason is just a disguise, used to hide behind, to make their predjudice seem reasonable and well thought out, nothing more.

This is why Ms. Marcus reasoning, should not even be considered as reasoning at all. 

In case you have missed it Uganda is proposing just to kill all the gays, so gay marriage is not an issue for Ugandan gays, however survival is.

Take for instance the phrase, sodomy, it’s still illegal in many states in this country. It presents a barrier to gay marriage, because the bible says it’s a sin somewhere.

But I digress. Ms. Marcus would have us believe that there is a special kind of reasoning that goes with, and is dependent on the sex, or ethnicity of the thinker, so that they have a unique cognitive ability to understand these issues that others do not have?

Yes, Republicans do the same thing, as those on the left, and they also hide behind the belief that their being completely rational, when in point of fact, rationality is the furthest thing from what they are doing, and this is why it is so dangerous.

Because it trivializes, and reduces someones pain, to little more than a popularity contest. And this is why the left will fail, and why the haven’t done much of anything, but wait for approval. An approval that will never come.

Report this
RAE's avatar

By RAE, February 11, 2010 at 6:59 am Link to this comment

Well, DivinePoet, it’s possible the usefulness of “our” advice to you will depend on the depth of your motivation to examine the issues.

My “off-the-cuff” view is that it’s a suicide mission much akin to strapping an explosive on your body and detonating it in a madding crowd.

An uneducated “lower class” population infected with the massive brain damage most religious dogma causes is not about to graciously alter its attitude about anything let alone as “touchy-feely” a subject as same sex intimate relationships.

And don’t expect high praise from the “upper class” members of your society either. These “emperors” don’t take kindly to being told they “have no clothes.”

If I were you and absolutely had to write my exposition, I’d not only do it under a closely guarded nom-de-plume but publish it from another country far away. But perhaps you need not worry - they’ll likely ban it anyway.

Best of luck!

Report this

By Divinepoet, February 11, 2010 at 5:45 am Link to this comment

I am a poet from Bangladesh, a third world country influenced by 90 per cent muslim. Most of them, I mean 50 per cent of the total population can read and write.Education is beyond their reach. In such a society I am writing a book in Bangla (state language)on same sex relationship in upper lass educated family. I apprehend or fear retaliation from that society. I am sure TruthDig can forward me some suggestion.

Report this
RAE's avatar

By RAE, February 11, 2010 at 4:55 am Link to this comment

G. Anderson wrote: “Yes, I am in favor of gay marriage, but the reason we don’t have it already is because of fear and predjudice, lets not sink to that level.”

I would suggest, perhaps, the reason lies more in the ignorance of the majority (heteros) of the needs of the minority (non-heteros) than in either fear or prejudice.

For example, people in wheelchairs have every right to access buildings and facilities but often find it difficult or impossible to do so, not because anyone set out to discriminate against them but because they simply never thought to include them in the planning. You know… how about a ramp instead of stairs, then everyone can get in? How about making sidewalks slope to the street so as not to present a barrier to wheels?

Perhaps… it never entered the minds of those who originated the wording and laws relating to marriage that non-heterosexual people might want to marry and have access to all the “benefits” of such a legal status. Perhaps.

However, once that oversight is recognized, there is NO EXCUSE NOT TO REMEDY THE SITUATION FORTHWITH. Once the majority KNOWS its actions are discriminatory and unfair, from that moment on any delay in making things “right” is a disgrace… and says a lot more about the majority than about the minority.

Report this

By John Kace, February 11, 2010 at 12:19 am Link to this comment
(Unregistered commenter)

Marriage is a silly and out-dated institution. I think its just the Government and the Churches wanting to have a three-way. With all the bad going on in the world, do you think God realy cares if the person you live with Love and Honor is not legally your spouse? Get bleeping real. Third grade romances last longer than the gruel were fed from hollywood. The only reason this is news is to get morons like me to think about things that dont matter.

Report this
G.Anderson's avatar

By G.Anderson, February 10, 2010 at 9:12 pm Link to this comment

“No one would question an African-American judge’s capacity to preside over a race discrimination lawsuit or a female jurist’s handling of a sexual harassment case.”

Actually Ruth I would, therefore your argument is not sound. It’s a little like saying it can’t be, therefore it isn’t.

People, are not qualified to make decisions soley based on their sex or their gender. Sex, or gender does not mean that someone has unique qualifications that others don’t have in cases like this.

There are many gays who are conservative, as well as many women who belong to fundamentalist religions who probably would decide in a way you would feel is fair.

What is important is deciding, the law based on the law otherwise your only substituting one form of predjudice for another.

Yes, I am in favor of gay marriage, but the reason we don’t have it already is because of fear and predjudice, lets not sink to that level.

I wonder how you would welcome Sarah Palin as our first women president? She’s a woman isn’t she? Is that all she needs to represent you as the first women president?

Report this

By Filler Crowley, February 10, 2010 at 8:27 pm Link to this comment

Oh hey! Two terrible Ruth Marcus columns in one day where she spouts the right liberal platitudes and then immediately undermines her own case by pretending that the conservative viewpoint is objectively correct! Why, if I didn’t know better, I’d say she’s a conservative putting on a transparently fake liberal disguise in an attempt to not be called an idiot! Ha ha ha.

But seriously she is fucking awful.

Report this

By frederico802, February 10, 2010 at 7:58 pm Link to this comment
(Unregistered commenter)

Of course those on the side of enforcing Prop 8 would be fine with a Scalia type judge who has his own right wing agenda, but let someone who even appears to have something left of the middle sit on the bench and they’ll scream foul. Let someone who may be gay look at them and they’ll scream injustice and sins against God.

Report this
RAE's avatar

By RAE, February 10, 2010 at 7:16 pm Link to this comment

Of course the lens through which judges observe the issues before them “matters.”

Not one of us is free from bias, prejudice and other factors which directly impact how we interact with our society.

Anyone who expects complete impartiality from ANY judge is simply not in touch with the absurdity of their expectations.

Report this

By P. T., February 10, 2010 at 4:50 pm Link to this comment

Which judge hears a case matters, as Sonia Sotomayor pointed out.

Report this

By liecatcher, February 10, 2010 at 4:13 pm Link to this comment

Don’t Ask, Don’t Judge?

If the Vatican hadn’t just installed a majority in the
SCOTUS to put the final nail in the coffin of we the
people who wanted to see the separation between the
Executive, Legislative, & Judicial branches of
government restored, as well as separation of Church &
State, then we could easily dismiss this article as
just another WASHPO red herring.

Report this

By Charles, February 10, 2010 at 3:57 pm Link to this comment
(Unregistered commenter)

This post makes me very uncomfortable. Of course the fact that the judge is gay does not render him unable to issue a correct and unbiased decision. Absolutely not. Ruth Marcus is registering straight people’s uneasiness with the full, open participation of gay men in the public life of the nation. It’s called homophobia.

At each further step forward gay people make, expect straight “liberals” to be “troubled” (“I’m not a homophobe, but…”). Especially when gay men attain positions of power, able to make authoritative decisions on matters of general concern.

Report this

Add Your Comment

Posts by unregistered readers are moderated. Posts by members
are published immediately. Why wait? Register today!






                        Number of characters remaining: 4000

Are you a human? Retype the word you see here.

     

Please read and abide by our comment policy.
By submitting this comment, you agree to this site's terms and conditions.

Newsletter

Get Truthdig in your inbox


 
 
 
Join the Liberal Blog Advertising Network
 
 
 
 
 
 
 

A Progressive Journal of News and Opinion. Editor, Robert Scheer. Publisher, Zuade Kaufman.
Copyright © 2012 Truthdig, L.L.C. All rights reserved.