Outing the Judge

“Judge Being Gay a Nonissue During Prop. 8 Trialsays the San Francisco Chronicle headline…outing the judge in the Proposition 8 trial as gay.

If it the judge’s sexual orientation is a non-issue, why does the paper believe it is ethical to reveal it?

The article describes the sexuality of Chief U.S. District Judge Vaughn Walker as “an open secret,” meaning that he does not deny that he is gay, but does not publicly declare it, either. Like most people, he prefers to leave that aspect of his private life separate from his professional activities. He has that right.

As in all such cases in which the news media chooses to publicize information it should not, the claim will be that “the public has a right to know.” Why? Is there a presumption that a gay judge is more likely to rule that Proposition 8, banning gay marriage in California, is unconstitutional? There shouldn’t be, if Walker is a good judge, and nothing in his record suggests he isn’t. If Walker felt personal considerations would interfere with his objective assessment of the legal issues, he would be bound to recuse himself from the case. He hasn’t.

That should settle the issue, but instead the San Francisco Chronicle felt that it should reveal an aspect of the judge’s private life to the world because…well, because it had some space to fill. Because some people will think that a gay judge can’t be objective, though nobody would assume the same of a straight judge. Because some gay reporters think that all prominent gays are obligated to make their sexuality public. Because it’s a newspaper, and the First Amendment says it can be as unfair, irresponsible, and disrespectful of others as it pleases.

Whatever The Chronicle’s  intention, the paper abused its journalistic duty to be fair and responsible. There is no excuse for this. The headline was right, which means that the story was wrong.

12 thoughts on “Outing the Judge

  1. Hmm. Help me out here.

    A judge has a personal financial stake in a company with a case before him. We call that a conflict of interest.

    Now, that judge may just have a tiny stake in the company, a few shares, of which even a windfall decision would not really make any difference, but we still call that conflict a problem. Papers publicize the fact, even though we are talking about a person’s personal financial stuff.

    Comes now the gay judge. He has, ostensibly, a personal interest in the matter before him (he may not actually, we don’t know). The newspaper clearly thinks that is a conflict of interest, or at least, wants the public to make a call on that.

    If he is a good judge, of course, he won’t let that affect him. But the same thing is true of the judge with the stock holding.

    So the question becomes, why is this different?

    • Codes of conduct tend to distinguish between tangible interests and speculative ones. In the case of judges, prohibitions are very general and there is no distinction: Here are some of the basic Code provisions:

      Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary. Because it is not practicable to list all such conduct, the Rule is necessarily cast in general terms.

      A judge shall uphold and apply the law,* and shall perform all duties of judicial office fairly and impartially.

      A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

      A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.

      Ultimately a federal judge can always maintain that he is not going to “let” himself be influenced, and that’s that. There is no requirement that he recuse if he thinks he won’t be biased.

      Now, with the business interest, at least it is clear where the bias would go. But I think the sexual orientation is a black box. Maybe he has a partner who is bugging him to commit, and the marriage option would break up his household. Maybe he thinks civil equivalent of marriage is better policy. Maybe he hates being gay. Maybe he believes strongly that the voters should have their way in a democracy (he is, in fact, regarded as a near-libertarian.)

      There are situations where state judges jave had cases overturned because it was unreasonable to think their financial or other interests wouldn’t either affect their judgment or give the appearance that the judge wasn’t impartial. This isn’t such a situation.

      Besides, the Chronicle is on record as favoring the overturning of Prop 8, and its commentary suggests that nobody believes the fact that the judge is gay will be a decisive factor.

      • Good point, Jack, but let’s face it — the biggest reason behind the conflict of interest code of conduct has to do with perception, not reality.

        It is not necessarily reality that a judge with business or other personal interests in a matter before the court could not set aside his personal stake in the outcome and reach a fair conclusion, but it is the public perception that he might not that undermines confidence in the outcome.

        I argue that the public perception here is the problem. If the judge simply disclosed the conflict rather than hiding it, he could say, “but I’m not influenced in this matter and it’s not a problem.” Personally, I would have no concern with that — I believe that a gay man could rationally rule on the constitutionality of this matter, but others might rationally not agree with me and point to the conflict as the reason why.

        Finally, I don’t really think the Chronicle’s editorial position is relevant to their news reporting, or at least it shouldn’t be.

        • It’s always both. The appearance issue is always there any time a reasonable person would surmise that a personal interest could skew independent judgment. And really, there’s no way to tell. Anyone can think they are unbiased, but that doesn’t mean that they are. In fact, I think it is nearly impossible for an individual to consciously adjust for bias without skewing his or her judgment anyway.

        • Also—regarding the Chronicle…my point was that I find it very unlikely, given the general orientation of the paper in both its reporting and editorial positions,that it would “out” the judge to undermine his credibility. I doubt anyone on the Chronicle staff would believe that a gay man couldn’t be objective…so what’s the news item?

    • I’ll throw on too and just add that his sexual orientation isn’t what would conflict him any more than a straight judge would be conflicted.

      The conflict would come into play if his outside activities showed he had a bias one way or the other. (i.e. Straight judge with ties to Focus on the Family)

      • Hi Tim:

        Why would a straight judge be conflicted? Are you assuming that straight people are reflexively opposed to gay marriage?

        Keep in mind that straight people have no legitimate or vested interest in the outcome — it does not affect their marriage rights in any way, so the notion that a straight person could have a conflict based on his sexual disposition does not logically follow.

        • Wow. 14 months and I feel I owe Glenn an apology! It’s hard to track comments after a while.

          I personally feel a straight judge would be conflicted if he felt that the marriage system would collapse. By marriage system, I mean the spousal benefits one receives through work or government programs.

          Also, if a straight judge ruled to uphold Prop 8 and they were a member of a church, a reasonable person could say that they were biased by their religion.

          We allow our judges to have certain biases because they are human. We don’t appoint automatons to the bench, we appoint members of society and using their “flavors”, they decide as logically and rationally as they can. If there’s too much “flavor” in their ruling, it will be overturned upon appeal.

  2. My only problem here is that the gay/straight issue is so touchy that it is giving The Hon.Vaughn Walker the benefit of the doubt.

    Judges have recused themselves for less important matters. Judges have been called before review boards for conflicts of interest that don’t come close to this issue. Judges have recused themselves because they know their very presence on the bench will disrupt, lengthen, and call their decisions into question.

    The easiest, and least disruptive action, would be for Judge Vaughn, to simply recuse himself, not because he can’t be impartial, but because he knows the media will make a circus out of the trial. (They love to “out” people even if they’re already out, and analyze ad nauseum the effect of sexual orientation on everything from judge’s rulings to the people they hire to the kind of coffee they drink. News is news is news, and people eat is up.)

    Judge Vaughn could make a good case that the trial will proceed with less hype and more gravity if this kind of thing wouldn’t go on day after day.

    Take away what we know is the mythological “conflict of interest” and let things proceed in a more orderly fashion. It has nothing to do with Judge Vaughn, except insofar as he could put the controversy to rest with a well placed, eloquent recusal.

    • Elizabeth, who would you have be the judge then? A eunuch? An asexual alien? A bisexual?

      Why does him being “allegedly” gay make him a more conflicted party at interest than someone who is “openly” gay, “openly” straight, or “allegedly” straight?

  3. Pingback: Perry v. Schwarzenegger: Choosing Ethics Over Morality « Ethics Alarms

  4. This is a great point.

    Let us take an example of a lawsuit alleging that a school’s music program discriminates against girls. A female judge would not be disqualified because of her sex.

    A judge whose daughter attends the school in question would have a duty to disclose, and may very well be disqualified.

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