Unicorns, Nessie and Objectivity: Three Things Probably All Hanging Out in the Same Place

This is not new news, but it’s been irking me, prodding at the back of my brain, and it’s just going to come out in a post. There is one myth that persists and persists.

The myth of objectivity.

A federal judge has upheld Judge Vaughn Walker’s ruling that Proposition 8, the law in California banning same-sex marriage, is unconstitutional. The proponents of the law had challenged the ruling on one basis.

That Judge Walker is gay.

They claimed that he could not be objective, as he may be affected by the law.

I say how shocking, how unbelievable, how offensive, and how indefensible that anyone would raise that argument in the year 2011, twenty-five years after the Supreme Court ruled that jurors can’t be excluded for race and race alone. That
principle was subsequently determined to include judges, as well.

Don’t think the two issues are related?

They come from the heart of the very same place, the idea that there is some viewpoint that is the neutral viewpoint, the clearer viewpoint, the “correct” viewpoint. Not only does it imply that a judge who is gay is unable to perform his duties, it also implies that there is someone in a superior position to make decisions regarding the rights of gay people. That some difference from what is considered the “setpoint”–white, straight, Christian, male–somehow renders that individual incapable of impartiality, but having the qualities of the setpoint automatically makes a person impartial.

To be clear, there’s nothing wrong with being white, straight, Christian and male, but there’s nothing wrong with not being that, either.

We saw this phenomenon during the confirmation of Supreme Court Justice Sonia Sotomayor,when she had the nerve to say that she was in a better position, as a Latina woman, to understand the issues facing Latina women, than a white male judge.

The furor burned hot and indignant. She directly challenged the myth of the “neutral” viewpoint, and pointed out that white men have a viewpoint as well.

To borrow the words from the brilliant and hilarious Catherine Tate, how very dare she.

There is not an individual on this planet untainted by his/her own characteristics, religion or non-religion, background, income, philosophy, ability to process information.

Not a one.

The opposite argument could have been made, that a gay person and only a gay person could understand what the right to marry would mean to gay people as a whole, or to the country, but that is not how our justice system works, or how judges work.

Judges look at the facts in front of them. They study the applicable law, including, in a case such as same-sex marriage, the Constitutional implications. To challenge a ruling because of who the judge is is to say that someone who is not gay would have reached a different conclusion, that the judge’s sexual orientation alone formed the basis for his opinion.

That’s hogwash. That’s right, I said hogwash.

Excuse the strong language.

The ban against same-sex marriage is the exact mirror reflection of this country’s previous (and embarrassing) ban on interracial marriage. With interracial marriage, the law required you to be the same when it came to an inherent characteristic: race.

For same-sex marriage, the law requires you be different when it comes to an inherent characteristic: sex.

With race, the laws were anti-miscegenation.

With sex, the laws are pro-miscegenation.

Same issue, different problem.

The only difference is that diversity has come a long way since the
almost-too-aptly-named Loving v. Virginia, the case that invalidated the anti-miscegenation laws. At that time, the likelihood of someone who, on the surface, would be directly affected by the law hearing the case was slim.

But here’s the end to another myth. Judges constantly hear cases where their own rights might be affected. What if the same logic were applied to a free speech case? Or a voting rights case? Or a case regarding investment law, or communications, or deregulation?

Judges are humans. What needs to change is this concept that some humans, by virtue of their basic characteristics, are better than others, are more objective than others.

Because they aren’t.


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