Anti-Gay Notre Dame Law Professor Questions Impartiality of Judge In Same-Sex Marriage Case

Notre Dame law professor Gerard Bradley published an op-ed on Foxnews.com, which challenges the impartiality of Judge Vaughn Walker. Walker is the federal judge who ruled yesterday that California's prohibition of same-sex marriage violates the Constitution. Walker is also gay.

According to Bradley, the media should discuss Walker's sexual orientation. Although Bradley does not argue that Walker should have recused himself from the litigation, he strongly implies that his sexual orientation makes him partial.

Bradley argues that:

The neglected bias in the Prop. 8 trial has instead to do with the fact that – as reported in The Los Angeles Times last month – Judge Walker “attends bar functions with a companion, a physician.”

If (as The Times suggests) Judge Walker is in a stable same-sex relationship, then he might wish or even expect to wed should same-sex marriage become legally available in California.

This raises an important and serious question about his fitness to preside over the case. Yet it is a question that received almost no attention.

Bradley's argument is preposterous. White judges decide racial discrimination cases brought by persons of color. Men rule on abortion and sex discrimination cases. Heterosexuals -- including openly anti-gay Justice Antonin Scalia -- rule on gay discrimination cases. If sexual orientation makes a judge partial, then no judge could hear a case related to sexual orientation discrimination -- because every judge has a sexual orientation.

Coincidentally, when President Carter appointed two black judges to the federal bench -- Judge A. Leon Higgonbotham and Judge Constance Baker Motley -- both faced recusal motions in discrimination cases. Both refused to view race and sex as a source of bias.

Bradley Is The One Who Is Truly Biased
Finally, Bradley does not reveal his own biases. Bradley has written commentary opposing same-sex marriage and equality for gays and lesbians. In a 2003 essay published in the National Review, Bradley makes the following arguments against same-sex marriage:

Our civil law has always treated traditional marriage as reflecting objective truths about human sexuality, procreation, and the family. Some people deny these truths. . . . [M]arriage depends for its health partly on sound laws that protect, maintain, and support it.

The task of conservatives in the coming showdown is to justify, not marriage qua marriage (almost everyone, gay and straight, agrees that marriage is a good thing), but the characteristic at its core: its intrinsic gender complementarity — one man and one woman, period. . . .

The answer is that homosexual acts are not and never can be marital. Sodomy has been discouraged, and sometimes prohibited, for basically the same reason that fornication and adultery have been: to protect marriage as the principle, or litmus line, of sexual morality. Sex is for marriage, and marriage is (not coincidentally) the morally legitimate setting for bringing children into the world.

This passage shows that Bradley -- not Walker -- has strong biases regarding same-sex marriage.