Can Courts Be Objective on LGBT Issues?


People need to stop kidding themselves over this notion of “judicial objectivity,” much less the blindly widespread, spirited, and unchallenged belief in it. We criticize judges and journalists over their purported bias, demanding the “whole story,” but we never seem to question whether or not avoiding bias is even possible.

Chief Judge James Ware of the Northern District of California rejected a motion on June 15 to nullify his predecessor’s ruling that Proposition 8 is unconstitutional. Proponents of the gay marriage ban argue that the personal life of openly gay Vaughn Walker, the preceding judge on the said constitutionality case, compromised his August 4, 2010 decision; a charge raised in the wake of Walker’s post-retirement admission in April that he had been engaged in a romantic 10-year relationship with another man.

“It is not reasonable,” stated Ware, “to presume that a judge is incapable of making an impartial decision about the constitutionality of a law solely because, as a citizen, the judge could be affected by the proceedings.”

The concerns raised by Proposition 8 proponents were best articulated by Professor of Law at the University of Notre Dame Gerard V. Bradley, who argued Walker should have recused himself from ruling over the case given his obvious personal “stake” in the debate over gay marriage. Bradley cited actual federal recusal statutes that state a judge must “disqualify himself” if he or she has “a financial interest” or “any other interest that could be substantially affected by the outcome of the proceeding.”

As a proud LGBTQ ally, I could not be happier about recent developments toward such advancement, including Walker’s and Ware’s decisions. However, I do support the claim of Walker’s detractors: There is no way his gayness was not a factor in his ruling. It hardly matters if you have sworn an impartiality oath on a King James Bible or on your grand mama’s grave, bias is inescapable.

And a plethora of reputable people agree.

Among them are journalists, who always suffer accusations concerned with bias and accountability — veteran Pulitzer Prize-winning Chicago Tribune journalist Jack Fuller has been considerably blunt about his opinion of objectivity, saying “an observer may be able to recognize his biases and attempt to correct for them … the process of correction requires a self-conscious mental intervention that is at odds with the concept of objectivity.”

“Trying to think objectively,” Fuller adds, “while recognizing the universality of bias becomes a bit like trying not to think of a purple cow.”

The ubiquitous acknowledgment — or even quiet acceptance — of bias’ inescapable nature seeds itself in the attitudes and likewise permeates (however unconsciously) the language and actions of many public figures.

Philip Dayle of The Guardian, for instance, cleverly responded to Bradley with a reminder that people should just get used to members of a minority group “play[ing] a critical role in determining a minority issue,” given that this is bound to happen more frequently in a “plural and democratic society.” Such is an obvious concession that bias is not only unavoidable and everywhere, but should be expected. In fact, this is consistent with Bradley’s own admission that conflicts of interests cannot always be ignored.

It is blatantly paradoxical how some conservatives would complain about Walker’s bias, admit that bias is everywhere, and then support the idea of living under a hypothetical Tim Pawlenty administration. The former Minnesota governor recently stated that as president, he would appoint more conservative justices to interpret the law more rigidly, thus favorably consider conservatives in cases involving gay marriage, abortion, and illegal immigration.

Our current president was not any less biased in his own somewhat controversial Supreme Court appointments, Associate Justices Sonia Sotomayor and Elena “Reagan-Hating” Kagan; the former unambiguously popular amongs liberals and the latter proving more or less a liberal problem in the eyes of some conservatives. Otherwise, Kagan seemed to be a calculated pick, given not only her reputation as a moderate “consensus-builder,” but also her appointment in the wake of picking Sotomayor.

This is what people should expect from anyone with a voice. A voice does not preclude one from taking sides, whether it is for, against, in between, or indifferent.

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