A recent column in the San Francisco Chronicle begins with this paragraph:
The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay.
The columnists then go on at length to quote the many people who think the judge, who was appointed by George H.W. Bush in 1989, will not allow his sexual orientation to influence his decision in the case. To repeat the title of this post, why is this newsworthy? Obviously this question must have bothered the columnists themselves, because they quote a federal judge who is friends with Judge Walker at length on the topic of the newsworthiness of the judge’s sexual orientation:
Shortly after our conversation, we heard from a federal judge who counts himself as a friend and confidant of Walker’s. He said he had spoken with Walker and was concerned that “people will come to the conclusion that (Walker) wants to conceal his sexuality.”
“He has a private life and he doesn’t conceal it, but doesn’t think it is relevant to his decisions in any case, and he doesn’t bring it to bear in any decisions,” said the judge, who asked not to be identified because of the sensitive nature of the Prop. 8 trial.
“Is it newsworthy?” he said of Walker’s orientation, and laughed. “Yes.”
He said it was hard to ignore the irony that “in the beginning, when (Walker) sought to be a judge, a major obstacle he had to overcome was the perception that he was anti-gay.”
In short, the friend said, Walker’s background is relevant in the same way people would want to know that a judge hearing a discrimination case involving Latinos was Latino or a Jewish judge was ruling in a case involving the Anti-Defamation League.
Why is the fact of a judge’s sexual orientation (or ethnicity or religion) relevant to news reporting in such cases? Doesn’t it merely reinforce hierarchies and negatively influence perceptions about judicial impartiality among the public? For example, when LGBT issues are brought before straight judges, do you see similar news stories or columns talking about the open secret that the judges are straight and quoting a number of people who know them attesting to the fact that they will not allow their (hetero)sexual orientation to affect their decision? Of course not. Straight judges are presumed to be impartial in matters affecting the LGBT community—and LGBT judges are presumed to be biased and “promoting the homosexual agenda”—absent convincing evidence to the contrary. At the end of the day, a story such as this plants a seed of doubt about the judge’s impartiality that does not get planted when a straight, white, Christian, or male judge hears a case about discrimination based on sexual orientation, race or ethnicity, religion, or gender.
And let’s not forget that, in the case before Judge Walker, the backers of Prop. 8 purport to be defending the different-sex marriages of heterosexuals against some imagined assault by the LGBT community. So, straight judges arguably have just as much at stake in these cases as lesbian or gay judges would. Maybe I missed something, but I don’t recall seeing columns or stories “outing” all of the judges who upheld bans on same-sex marriage in Arizona, Indiana, Washington, Georgia, Louisiana, and Nebraska or “outing” all of the judges who interpreted ambiguous marriage statutes to prohibit same-sex marriage in the District of Columbia, New York, and New Jersey. If the sexual orientation of these many judges was not relevant to news reporting regarding their decisions, despite their arguable self-interest in those cases, then why is Judge Walker’s relevant to this case? Are we going to see similar reporting on the 9th Circuit judges and Supreme Court justices who hear the appeals in this case?