As we await the ruling of Judge Vaughn Walker in the Prop 8 trial, we’re being treated to sample attacks by conservative extremists, who will be ready to pounce on the judge if he knocks down the voter-approved law as unconstitutional. But lost in this debate is the other side of the coin toss: What happens if Walker, and openly gay judge, lets Prop 8 stand?
The immediate aftermath: utter disappointment from the gay community, Gay Inc. struggling to find its footing (and someone to blame), Ted Olson and David Boies wondering what went wrong, and blogs like this one pointing fingers, because that’s what we do.
But Walker’s sexuality will, without question, be part of that debate in the second phase of the news cycle. And if he rules against the plaintiffs in Perry v. Schwarzenegger, it won’t be the zealots supporting Prop 8 whom attack him, but the gay community going after one of their own.
On the far right, it meant pointing to Walker’s alleged courtroom activism; striking down Prop 8 would only represent yet another “legislating from the bench” move in favor of a demographic he’s a part of. But gay marriage supporters also worried aloud whether there could be a measure of “overcompensating,” where in the interest of appearing fair, Walker would ultimately uphold Prop 8 because it’s something voters decided. Throw in Walker’s history of arguing against gay causes (see: Gay Olympics), and there’s really no way to nail down how his sexuality will play a role in his decision.
Except that it almost certainly will not. At least not the way the peanut gallery thinks.
The same way Sonia “Wise Latina” Sotomayor, as a woman of color who grew up in a less-than-middle-class environment, is arguably better equipped to understand the everyday concerns of the populous her decisions will affect, so too can Walker, as a sixty-something gay man who grew up with anti-gay discrimination first-hand, know that laws like Prop 8 actually do affect Americans in ways no voting bloc, court, or elected official should ever support. Such personal experience and awareness does not make him biased; it makes him competent.
We’ve already shot down arguments using Walker’s sexuality as a chip should he rule against Prop 8. That same reasoning stands if he supports it: Walker is no more qualified to rule on Prop 8 as a homosexual or a heterosexual.
But should he decide to uphold Prop 8, it won’t be that Walker is a traitor to gay Americans. It’s that he is a traitor to the promise of life, liberty, and the pursuit of happiness.