Earlier this month, the Liberty Counsel’s Mat Staver was asked how he felt about the nomination of Andrew McDonald, an openly gay judge, to serve as chief justice of the Connecticut Supreme Court. Staver responded with this:
“Here’s the problem with it beyond the issue of the morality of this,” Staver said. “Beyond the issue of other consequences is the fact that what we typically see is someone’s identity, their being, completely wrapped up in their sexual practices, meaning that—do you think that if you had an Aaron and Melissa Klein or a Jack Phillips bakery or anything else like that where you have the LGBT clash with religious freedom or freedom of expression come before this judge, do you think this judge is going to be open and fair irrespective of what he does to rule based on the Constitution and the rule of law? I don’t think so.”
Straightness is not neutrality. Think about it—that is what Staver is alleging. That a straight person could rule on one of these bakery cases in a neutral manner. Would Staver take it a step further and say that a black judge could never fairly judge a Jim Crow law? Or that a female judge could never fairly rule on a sexual harassment case? Straightness, whiteness, maleness—these things are not neutral.
Staver adds this:
“This is a real problem because what we are doing is we’re putting somebody on a bench who is siding with their personal identity,” Staver added.
Doesn’t everyone have a personal identity?
Do you know what? This smells like projection. I grew up in an evangelical homeschooling family. One year I went to a camp on Constitution law at Patrick Henry College. During one lecture, Michael Farris, the school’s founder, pointed around the room and said that his dream was for those on this side of the room to be Congressmen, and those over there to be Senators, and those up there in the middle to be on the United States Supreme Court. This was all part of a plan to restore Christian norms and values to a secular culture.
Farris certainly did not want us to check our personal identities as born again Christians at the door when we assumed these government positions. Far from it! Inserting our personal identities into politics and law was rather the goal.
In his comments, Staver drew this comparison:
[Staver likened] the situation to the recent resignation of Judge Alex Kozinski from his position on the Ninth Circuit Court of Appeals amid multiple allegations of sexual misconduct.
Insisting that Kozinski would have been unable to rule fairly in cases involving pornography or sexual assault, Staver asserted that McDonald, or any other gay judge for that matter, is likewise incapable of delivering objective rulings in cases involving LGBTQ rights or religious freedom.
Lest Staver think Kozinski the first judge to sexually harass his female clerks or other women in his workplace, let me just point out that decades and decades of case law on sexual harassment was laid down by male judges who very likely engaged in sexual harassment themselves. Last I noticed, Clarence Thomas was still on the bench. That is not the pertinent point, however.The pertinent point is this: By Staver’s logic, we can’t trust a Christian judge to be objective in ruling on cases involving religious freedom. And we certainly couldn’t trust a Christian judge who believes that homosexuality is sin to rule objectively on LGBTQ rights. Everyone has a personal identity—and that includes straight people, white people, men, and Christians just as much as it does gay people, black people, women, and atheists.
Having straight white Christian men on the bench does not make the bench neutral.
Staver finishes with this:
“The question is: are you going to get a fair shake out of this individual who identifies as someone based upon his sexual practices, who is identified and identifies himself based upon certain behavior?” Staver said. “Are you gonna get a fair shake? I don’t think so. So that is a real problem in this nomination of this appointment of this individual.”
Staver is extremely hung up on sex here. Buying into his reasoning here, I would point out that Christians, too, have an identity based on certain behavior—church attendance, prayer, Bible reading, and abstention from specific behaviors.
I suspect that Staver has never stepped outside of his identity as a straight white Christian man to consider what it might be like for those different from him to approach the predominantly straight white Christian men currently on the bench. Consider this—can a black woman assume that she would get “a fair shake” from a white male judge? Can an atheist assume that he will get “a fair shake” from a Christian judge? Can a gay man assume that he will get “a fair shake” from a straight judge? And on it goes.
Is there a solution? For one thing, we can and should ask judges whether they believe they can rule fairly in a wide variety of cases. Good judges know how to draw a line between their personal identity and issues of the law, drawing on their experiences but making rulings that center the law. These are things we can and should be asking of every judge—not just those with minority identities.
The other part of the solution is to have diverse judges. The subjects explored by historians changed when women and minorities began entering the profession, because hailing from a greater breadth of backgrounds expanded the questions historians asked. The same applies to many professions, and especially to those like the law, which affects and arbitrates over people of all backgrounds. We should have gay judges and straight judges, white judges and black judges, male judges and female judges—and disabled judges, the list goes on.
Staver’s assumption that straight is neutral could not be more wrong.
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