IGF CultureWatch

U.S. District Judge Vaughn Walker is gay.

Which means that the Proposition 8 case will be decided by someone it directly affects - that is, someone who can't get married under the current law.

The question of the week, of course, is: Is this fair?

A ferocious debate about this is raging in the press and the blogosphere. On one side is the National Organization for Marriage, the conservative, anti-gay marriage organization that has been fighting Prop 8 all along.

They immediately sent out a letter that read, in part: "[Judge Walker has] been an amazingly biased and one-sided force throughout this trial, far more akin to an activist than a neutral referee."

This is ridiculous on its face. For one thing, a REALLY biased (for us) judge would have immediately issued a stay on Prop 8, allowing gay weddings to continue while the case was decided.

The truth is that the National Organization for Marriage would have called Walker an "activist judge" if he ruled against Proposition 8, no matter his sexual orientation. And odds are that we will win this case in Walker's court - simply because the anti-marriage folks presented a very weak (to non-existent) case.

On the other side are the gay blogs, many of which responded with surprise, secret joy and immediate fear about what the right would say. It almost goes without saying that the gay community thinks that Walker being gay is positive news for us.

But why would it be?

Though Walker lives in the liberal San Francisco metro area, he was appointed by the first President George Bush and is a proponent of law and economics, the more conservative/libertarian branch of law that grew out of the fairly conservative University of Chicago law school. He has been a judge for over 20 years without the issue of pro-gay bias coming up.

In fact, gay activists have previously cried foul over his actions. The San Francisco Chronicle reported (in the column that outed Walker's "open secret" to the country) that Walker once "represented the U.S. Olympic Committee in a successful bid to keep San Francisco's Gay Olympics from infringing on its name," leading gay Californians to "hold him in contempt."

But there is a broader issue here that extends beyond Judge Walker: Why are minority identities assumed to be biased in and of themselves?

After all, no one assumes that mainstream identities lead to bias. If a straight judge had won the draw for the Proposition 8 case, no one would automatically assume that he would uphold an anti-gay marriage law.

On the other hand, if he had espoused another minority identity like being Mormon, I bet you that gays and lesbians would have cried foul - even though there are plenty of Mormons who support gay marriage.

This issue comes up over and over again in American jurisprudence. People wonder if African-American judges will fairly rule on issues like affirmative action. They wonder if women judges will be objective when faced with gender discrimination cases.

And so of course they wonder - we all wonder - if Judge Walker feels and thinks differently about the Proposition 8 case because he's gay.

It comes up, of course, because judges are human. They can't help being swayed by their full identities and experiences, whoever they are. Sometimes being a minority makes them more sympathetic to the minority plight. Sometimes being a minority makes them LESS sympathetic, partly because they are worried that they, yes, will be seen as biased.

Being expected to think a certain way just because of your gender/ethnic/religious/sexual identity is insulting.

Democracy is messy. People have all sorts of secret feelings, all varieties of life experience, that can't be captured in simple Democrat/Republican, straight/gay labels. Judges are trained to overcome these as much as they can, but of course they will be swayed by them.

Which way will they be swayed? We can't predict. And that's why identities are not biases.