The Right Not Right on Gay Marriage

COMMENTARY | The gay marriage debate has entered unfamiliar territory with a new question: Should gay judges be able to rule on the issue of gay marriage? According to New York Magazine, Chief U.S. District Judge James Ware upheld Tuesday an August 2010 decision striking down Proposition 8, a statute that banned gay marriage in California. Judge Ware, who is chief judge of California's Northern District, also ruled that former U.S. District Judge Vaughn Walker didn't have to disclose his gay relationship before deciding on Proposition 8 last August. According to the Associated Press, Walker has been open about his own 10-year relationship with a man.

Walker's opponents argue the judge's impartiality was diminished by his homosexuality and he should not have been able to rule on the case; an opinion that is not only wrong, but dangerous to our justice system.

Two Birds, One Stone

Tuesday's ruling was actually about two issues. Had Ware ruled that Walker should have recused himself from the case, then Proposition 8 would have lived to see another day. Now we can hope the slow demise of Proposition 8 will continue. Polls leading up to Tuesday's case showed support for gay marriage rising in the country.

A Gallup poll found that 53 percent of Americans back gay marriage -- a slight majority -- and a deeper look shows gay marriage is inevitable. In 1996, only 27 percent of Americans supported gay marriage, which means support has almost doubled in 15 years. More telling is that 70 percent of Americans 18-34 favor gay marriage. It seems the opposition is swimming against a tidal wave of progressivism. Moreover, the idea that gay judges shouldn't rule on gay marriage is absurd.

Walking in Walker's Footsteps

Let's take Judge Walker's case for example: The story of his ascension to the bench is a conservative's dream. According to the San Francisco Chronicle he was first nominated to the bench in 1987 by none other than Ronald Reagan, perhaps the most revered Republican president in American history. The irony doesn't end there. Walker's initial nomination stalled because of opposition from -- wait for it -- Nancy Pelosi.

Still not done!

The reason for Democratic opposition: Walker had represented the United States Olympic Committee in its "effort to prevent an athletic competition in San Francisco from being called the "Gay Olympic Games." It was not until George H.W. Bush nominated Walker again in 1991 that he took the bench. Walker almost didn't become a judge because Democrats accused him of persecuting gays. Don't you just love politics?

Think Before You Speak

One would think all this would work in the favor of Walker, yet conservative groups like ProtectMarriage have made statements like, "He (Walker) was obligated to either recuse himself or provide full disclosure of this relationship at the outset of the case. These circumstances demand setting aside his decision." Apparently, ProtectMarriage hasn't thought about the ramifications of their argument.

If gay judges weren't allowed to make rulings on gay marriage, then women shouldn't be allowed to hear any cases regarding sexual harassment. A black judge couldn't possibly try a case involving a fellow African American. Judge Ware had no choice but to rule the way he did; anything else would have turned our judicial system upside down.

In a time when things don't seem to make much sense, one judge showed that logical decisions are possible. Now let's hope the higher courts don't get any bright ideas and force me to reverse the prior statement.