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Judging, Judges and Prop 8

Washington Post columnist Ruth Marcus, in a piece titled, “Don’t ask, don’t judge?” gave a rhetorical green light to Religious Right activists who have responded to news that federal judge Vaughn Walker is gay by attacking his ability to rule fairly on the constitutional challenge to Prop. 8, the California ballot initiative that stripped same-sex couples of the right to get married.

Although Marcus concludes in the end that Walker, who was randomly assigned to hear the case, was right not to recuse himself simply because he is gay, she does so after a lot of “squirming” like this:

So when Walker considers claims that the ban on same-sex marriage violates the constitutional guarantees of equal protection and due process of law, it's hard to imagine that his sexuality, if he is gay, does not influence his decision-making -- just as the experience of having gay friends or relatives would affect a straight judge.

In the end, Marcus writes,

In this case, I hope the plaintiffs win and that Walker rules that the same-sex marriage ban violates their constitutional rights. At the same time, I've got to acknowledge: If I were on the side supporting the ban and found it struck down by a supposedly gay judge, I'd have some questions about whether the judicial deck had been stacked from the start.

But why wouldn’t the deck be considered “stacked” against gay people if a straight judge were deciding the case? By concluding her column that way, Marcus gives credence to the offensive notion that is already being promoted by right-wing leaders that a gay judge cannot be expected to rule fairly in a case involving the legal rights of gay Americans.

Here’s Matt Barber, director of cultural affairs with Liberty Counsel, responding to news that Judge Walker is, in Barber’s words, “an active practitioner of the homosexual lifestyle.”

“At worst, Judge Walker’s continued involvement with this case presents a textbook conflict of interest. At best, it objectively illustrates the unseemly appearance of a conflict.

"If Judge Walker somehow divines from thin air that the framers of the U.S. Constitution actually intended that Patrick Henry had a ‘constitutional right’ to marry Henry Patrick, then who among us will be surprised?

“Any decision favoring plaintiffs in this case will be permanently marred and universally viewed as stemming from Judge Walker’s personal biases and alleged lifestyle choices.

"For these reasons, and in the interest of justice, Judge Walker should do the honorable thing and immediately recuse himself.”

Barber tries to make a case that he is taking a principled stand by saying, “This is no different than having an avid gun collector preside over a Second Amendment case,” continued Barber, “or a frequent user of medical marijuana deciding the legality of medical marijuana.”

Really, Matt? You expect us to believe that you would advocate that judges who collect guns should recuse themselves from cases involving the Second Amendment? What about avid hunters, like Justice Antonin Scalia? Should anyone who owns a gun be assumed not to be able to rule fairly on legal issues involving guns?

The Post’s Marcus concluded that asking Judge Walker to recuse himself would “invite too many challenges to judicial fairness -- Jewish judges hearing cases about Christmas displays, or judges who once represented unions or management presiding over labor disputes.”

What about Christian judges presiding over Christmas displays? Can you imagine the outrage from Matt Barber and his Religious Right colleagues if someone were to suggest that Christian judges should be barred from hearing cases involving legal and constitutional questions about separation of church and state?

In a diverse and pluralistic nation, it’s important that the federal bench reflect that diversity. But what’s far more important than an individual judge’s race, religion, ethnicity, or sexual orientation is his or her judicial philosophy and understanding of the Constitution’s text, history, and role in protecting the rights and opportunities of all Americans.

The unspoken offensive presumption at work here is that people who come to the law with a life experience that is considered “normal” – say, straight white male Christian – are inherently unbiased, or that their life experience somehow gives them a singularly correct way of viewing the law. Others are suspect.

This notion was on ugly display during the Sonia Sotomayor hearings, when her recognition that she would bring her life experience as a Latina to the bench was used to pillory her as a white-male-hating racist. What about all those white male senators, and the white male Supreme Court Justices they had voted to confirm? Samuel Alito’s ethnic pride and empathy were considered valid, while Sotomayor’s was radical and threatening.

Ruth Marcus is no Matt Barber. She is in some ways simply acknowledging the reality that there is still a level of emotional prejudice against gay people that will keep some Americans from believing that a gay judge can be fair. But she is far too sympathetic to the purveyors of that prejudice. Her column validates their bigotry and will encourage more of the kind of divisive rhetoric we see from the likes of Barber.

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