Bryan Fischer
Why Judge Walker should have recused himself
By Bryan Fischer
August 10, 2010

The ultimate issue in the Prop. 8 case has to do with society's approval of homosexual conduct, and whether it should be treated as the full moral and legal equivalent of heterosexual conduct.

This is an enormous public policy concern, and is extremely controversial. This makes it wholly unlike marital intimacy between a man and a wife in a marriage relationship, which has always enjoyed universal support and commendation. No married judge need excuse himself from a case which deals with the acceptability of marital intimacy just because he happens to agree with all human history and the entire history of jurisprudence in the United States.

While a married heterosexual judge engages in sexual intimacy that has always been legal and always been sanctioned by society, Judge Walker engages in sexual conduct that as recently as 1962 was felony behavior in all 50 states, was still a felony in 49 states in 1972, and, while unenforceable due to Lawrence v. Texas, is still a felony according to the criminal code of 12 states.

Because of the enormous implications of elevating homosexual conduct, with all its risks to human health and psychology, to parity with intimacy between a married man and woman, it is an issue that must be reserved to the people or to their elected representatives. There are huge implications for domestic policy, for education policy (what views of human sexuality will be taught to schoolchildren, for instance), for tax policy, and for military policy (gays in the military, for instance) depending upon how society resolves this issue.

Elected officials are directly accountable to voters in a way that federal judges are not. It is wholly inappropriate for a judge, let alone a practicing homosexual, to be the decider in a controversy of this magnitude.

Judge Walker appointed himself a one-man super-legislature, and it was unethical for him to do so because his mind was already made up on this huge public policy issue. Through his own lifestyle choices, he has made it clear that he, without any question, thinks there is a moral and legal equivalency between homosexual and heterosexual conduct.

His conflict of interest on this matter makes it utterly improper for him to be the decider on an issue like this.

Legislators who use their influence to affect legislation in which they have a personal stake can get themselves kicked out of Congress, as Charlie Rangel and Maxine Waters may soon find out.

Judge Elana Kagan will be forced to recuse herself on somewhere between a dozen and two dozen cases because she's already tipped her hand by her work in the executive branch on particular issues. The conflict of interest she has in such cases means everyone, including Ms. Kagan, recognizes she cannot be an impartial jurist on those matters.

It was, in a similar way, impossible for Judge Walker to sit as judge in any case in which the parity of homosexual and heterosexual conduct was an issue. He had far too much of a personal stake in this matter to even pretend to be a neutral umpire. He was going to call this one for the visiting team before the first pitch was thrown.

When I read in the San Francisco Chronicle back in February that he was a practicing homosexual, and that he wanted the whole thing televised so he could become a media star, the Judge Ito of the homosexual movement, I knew in that instant how he was going to rule. The trial itself was a charade, a farce, because the ultimate ruling had been decided in his mind before day one of the trial.

The fix was in, and that is, to borrow a phrase from our newest member of the Supreme Court, a moral injustice of the first order.

© Bryan Fischer


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