Dahlia Lithwick writes about Prop 8 supporters effort to disqualify Judge Vaughn Walker, who ruled that Prop 8 was unconstitutional, because he is gay and in a committed relationship:
And what of the argument that Judge Walker stood to benefit personally from his own ruling in the Prop 8 case? Wouldn’t—by this logic—a straight judge similarly stand to benefit from a ruling upholding Prop 8? Certainly under the plaintiffs’ theory of the case (i.e., that every last heterosexual in America will be harmed by legalizing gay marriage) wouldn’t a straight judge have been forced to recuse herself as well to avoid the possibility of personally benefitting from her ruling?
I made a similar argument when Prop 8 supporters filed the motion to vacate Walker’s ruling. If same-sex marriage hurts straight marriages, then a straight judge has just as much as stake as a gay judge. Prop 8 supporters, by seeking to vacate Walker’s ruling, are either implicitly conceding the point that same-sex marriage doesn’t hurt straight marriages or simply arguing that only straight people can be objective arbiters of the law. The choice between being a bigot or a liar doesn’t seem particularly appealing to me.
Yesterday I was at an ACLU event where they screened The Loving Story, Filmmaker Nancy Buirski‘s documentary telling the story of Mildred and Richard Loving, the Virginia couple whose fight against Virginia’s anti-miscegenation laws led all the way to the Supreme Court. Now the nine male Justices returned a very brief verdict overturning the law and all like it as unconstitutional, but if there had been a black man or woman on the court they would have likely faced the same kind of prejudice as Walker–except that the nine Justices would conceivably have had the same interest in protecting the “purity of the white race” as a black Justice might have had in tearing the whole concept down.
Virginia didn’t make that argument however, and Philip Hirschkopf, one of the ACLU attorneys representing the Lovings, lamented that the state avoided the white supremacist doctrine at the heart of the law’s existence. Instead, they made reference in oral arguments to “scientific studies” proving that children of interracial marriages were less well off or unhappier than others. This was part of the “psychological and sociological evils which attend interracial marriage” that justified violating the 14th Amendment.
