Sunday, February 7, 2010

Fair and Impartial

Now how did I miss the fact that Judge Walker is gay?

(For you Rip van Winkles, Judge Walker is the judge in the trial going on in San Francisco to determine whether the referendum – known as Prop. 8 – which removed the rights of gays to marry in California was constitutional. The case is known as Perry v. Schwarzenegger.)


He’s also 65. You know. Homophobe generation.

He’s also conservative enough to have been appointed by Papa George Bush.

More libertarian than conservative, I understand, so maybe that’s non-newsworthy.

He is also the lawyer who defended the U.S. Olympic Committee when they successfully fought off gays' attempt to use the Olympics name in the Gay Olympics of 1982. Way to go for the team, Walker.

I still have a "Gay Olympics" T-shirt printed before we were forced to change the name to "Gay Games." I still remember the bitter taste in my mouth that lasted for years. The fact they permitted Special Olympics for kids with disabilities, the Police Olympics and even, I understand, the Nebraska Rat Olympics, until the Olympic Committee got to them, too, in 2004.

Reminds me of that iconic Isherwood story, where he knows he's in trouble entering Britain back in the 60s, I think it was, with his German lover. He sees in the eyes of the customs agent that he's going to be turned back. Why? Because the agent is gay and closeted and working hard to be accepted by the homophobic world. Iconic because gays (well, of my generation, at least) are likely to tell you experience suggests people happy with their sexuality have no interest in yours, and gay bashing is usually derived by fear one might at some subconscious level be “that way” himself. Nothing more fear-inducing for gays than another gay with internalized homophobia.

Damn, I wish I could be sure I was discussing a no longer relevant historical phenomenon. I fear I’m not. I fear there are still lots of people “bending over backwards” to prove they’re not “one of them” or “too easy on them” or in some way putting the tribe over the world at large.

It’s hard to talk about this issue without getting insulting. I suspect Walker would cry foul and argue he was simply being a lawyer and lawyers whore for their clients and that’s the way things are supposed to go, the law being bigger than all of us, don’t you know. And shame on me for casting aspersions on his integrity.

But we have to ask, at least. No offense intended. We live in a world of polarized ideologies which extend right up and into the courts. Suddenly the issue of neutrality is on the table again. Will Walker decide for the plaintiffs and pronounce Proposition 8 unconstitutional and overturn the ban on gay marriage in California? If he does, will his being gay (Is he really gay?) play a part in his decision? Will he write an opinion that will solidify the case when it goes to the District Court and ultimately to the Supreme Court, as lots of people are predicting? Will he bend over backwards to show he’s not too pro-gay? Or will he really find this narrow band called neutrality and not let all the homophobic crap that came from Pugno et al at the trial influence his decision?

Why would he not let that stuff influence his decision?

All this suggests there could be a nasty fight and charges of bias down the line.

Nasty could be an understatement. Gays are smelling victory. If Walker goes against them they will scream for blood and they will have righteousness on their side. The defense was a poster boy for incompetence and the fact that, try as they might, they couldn’t come up with argument (other than God-hates-fags, I mean) suggests homophobia in America may, at long last, be slinking into the shadows. The fact that their two witnesses, Miller and Blankenhorn, actually made the case for the plaintiffs was more delicious than Chocolate Heart-Attack.

The money is on Walker deciding for the plaintiffs, though, and that means Pugno and the folks claiming to "protect marriage" will be tempted to claim Walker’s being gay made him a bad judge. If it goes that way, how much money would you lay down on their not being led into temptation?

We have to remember that Walker was assigned the case. He didn’t ask for it. And his work for the Olympic Committee should give evidence that he is more lawyer than gay liberation advocate.

And then, too, everybody will have to be reminded that gay issues are decided far more often by non-gay judges than the other way around. Nobody worries about hetero bias.

In time, we will be looking past Walker to the Supreme Court where Scalia and Thomas are known to be raving homophobes. And the question of whether these guys can determine the case on its merits. (Did I say nobody worries about hetero bias?)

Stay tuned. Future law students may be getting some rich material to chew on in the question of whether neutrality exists in the courts of this postmodern world any more. Or ever could.

No comments: