The American Debate: Gay marriage is a dead political issue

Foes tried to make Judge Vaughn Walker's homosexuality an issue.
Foes tried to make Judge Vaughn Walker's homosexuality an issue.
Posted: February 09, 2012

Eight years is an aeon in politics. Witness the waning potency of the gay-marriage issue.

During the 2004 campaign, Republican strategists put gay marriage on referendum ballots in key swing states, as a "wedge" issue to unnerve Democrats and gin up the conservative base for President George W. Bush. The Massachusetts high court had just ruled for legalization, and hostility toward the concept was the centrist position in America.

This is no longer true.

Granted, social conservatives voiced anger Tuesday when, for the first time ever, a federal court of appeals declared that gay marriage was a constitutional expression of equal rights. But most Americans will shrug and move on. As evidenced by all the polls, tolerance is the new centrism.

Case in point is the subplot that stars Vaughn Walker.

As a federal District Court judge in California, he wrote the original ruling in favor of gay marriage, back in August 2010. When he retired seven months later, he confirmed long-standing rumors that he was gay. Conservative litigants pounced on the news and insisted his ruling be shelved, on the grounds that he had concealed an inherent conflict of interest, namely, that he was "an active practitioner of the homosexual lifestyle."

Note the inherent bigotry in that argument. On appeal, these conservatives basically contended that all gays, by definition, have a political agenda, and that a gay judge in the grip of this agenda is incapable of rendering a credible verdict. This was the first time a federal judge had ever been targeted on the basis of sexual orientation, but it was actually an old tactic, dusted off from the '60s, when it was used to impugn the credibility of black and female judges.

Back then, some litigants insisted that black judges recuse themselves from civil rights cases (being black was supposedly an inherent bias) and that female judges should recuse themselves from sex-discrimination cases (being female was supposedly an inherent bias). The assumption, naturally, was that only white male judges, by dint of being white and male, had the requisite intellectual skills to rule impartially.

But a string of rulings put the kibosh on that tactic. And now the federal court of appeals has done the same by defending Walker. All three judges, including the George W. Bush appointee, said Tuesday that Walker (himself a Republican appointee) had ruled impartially, that his private life was not grounds for disqualification, and that "to hold otherwise would demonstrate a lack of respect for the integrity of our federal courts."

They actually took their cues from James Ware, the U.S. District Court judge who briefly handled the gay-marriage case after Walker retired. The conservative litigants first went to Ware with complaints about Walker's private life. They were upset that Walker had mentioned, in a newspaper interview, that he has lived with a male physician for 10 years. But Ware (another Republican appointee) promptly shot them down, in writing: "The presumption that 'all people in same-sex relationships think alike' is an unreasonable presumption, and one which has no place in legal reasoning."

Indeed, there should have been "no place in legal reasoning" for the presumption that all blacks think alike. One could as easily have argued that white judges should have been disqualified as well, on the fatuous grounds that they, as a group, had an inherent political interest in maintaining the racial status quo.

The same flaws in logic surfaced in the California gay-marriage case. In 2010, the conservative litigants argued in Walker's court that equal rights for gays would wreck the heterosexual marriage institution; yet, by that standard, no married straight judge should handle the case either, since by definition such a judge would be inherently biased in favor of saving the traditional institution.

Given the historic import of Tuesday's ruling - this was the highest court ever to rule that the unequal treatment of gay couples violates the Constitution's Equal Protection Clause - the issue of Walker's gayness seems minor. But by depicting him as a professional rather than a stereotype, the appeals judges have taken one more step down the road to tolerance.

And increasingly, the public is already there. When the Pew Research Center first asked about gay marriage in 1996, only 27 percent of Americans approved; the latest Pew spread is 50-50. Gallup's figures are more bullish: The polling firm says that 53 percent of all Americans support gay marriage, the highest share ever. And given the fact that support is greatest among Americans under 30, it's clear that gay marriage is a demographic inevitability - and, sooner rather than later, a dead political issue.

Mitt Romney and his rivals are railing this week about the "unelected judges" in "San Francisco" (the latter a synonym for decadence), but those lines are aimed at the conservative base in the midst of primary season. You'll hear little this autumn about gay marriage, because the issue has little sway anymore among swing voters. As former Bush strategist Mark McKinnon noted a year ago, "The wedge has lost its edge."


Contact columnist Dick Polman

at dpolman@phillynews.com

or @dickpolman1 on Twitter.

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