Would a Black Judge Have Been Biased in Brown v. Board of Education?
US District Judge Vaughn Walker is the judge who issued the ruling that Prop 8, which bans same sex marriage in California, is unconstitutional. Conservatives are now claiming that he is gay (which is unconfirmed at this point) and that his gayness presents an obvious bias. Furthermore, he should have recused himself from the case because as a gay man he would have a conflict of interest in deciding a case on gay rights.
The obvious question is – would a straight man not have a bias? Prop 8 would maintain straight people’s monopoly on marriage. Wouldn’t a straight person have a conflict of interest in deciding a case about whether they get to have more rights than other people in society? Presumably a lot of straight people voted in California to take away the right of gay people to get married – wouldn’t they be biased in favor of protecting their own rights and taking away the rights of gays in California?
How about a devoutly religious judge? If that person believes it is an abomination against God to have gay people get married, wouldn’t that create an obvious bias? Should we look into how religious each judge is before we let them decide cases like this? How about Antonin Scalia, who has on many occasions talked about how deeply religious he is? Should he be recused if this case reaches the Supreme Court? Clarence Thomas? Samuel Alito? How many justices will be left to decide this case?
Now, let’s think about it a different way. What if there was a black justice on the Supreme Court when they were deciding Brown v. Board of Education? Would he be biased in favor of having the same rights as white Americans? Should he have stepped down from the case because he would obviously want the same constitutional rights as any other American? Bias!!
Of course, there was a black man in the courtroom at the time. The man who was the winning attorney on Brown v. Board of Education and would later become the first ever African-American justice on the Supreme Court – Thurgood Marshall. Should the court have told him that he couldn’t litigate the case because it would be biased of him to want the same rights as white people?
Should Marshall have also recused himself from every case that involved race when he was on the Supreme Court? If so, why did the white justices get to rule on those cases?
As you can see, although the bias argument might seem appealing at first blush to some, it is quite absurd when you break it down. If you’re not already convinced, let me give you one last example. What if California decided to take away women’s right to vote – could a female justice not rule on that case because they would be biased in favor of keeping their own constitutional rights?
But you don’t have to worry about these absurd right-wing arguments for much longer because conservatives will lose this battle, as they have lost every right civil rights battle they have ever fought in this country. As I explain here:
And as far as whether being gay is an abomination and ruins the institution of marriage, I want you to think about this:
As Judge Walker meticulously explained, there are no rational arguments in favor of denying gay Americans the same rights that straight Americans enjoy. Only irrational ones, like the one that says that it is biased for a gay man in this country to ask for equal protection under the law.
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