After federal district judge Vaughn Walker issued his ruling in the Proposition 8 case that is now before the Supreme Court, there was a lot of discussion about the judge’s sexual orientation. One particularly thoughtful writer wondered aloud whether the judge’s personal life really mattered. See Jesse Finfrock, Does Prop 8 Judge’s Personal Life Matter?, Mother Jones (August 4, 2010) (concluding that “while his sexual orientation does not matter from a legal perspective, it does put the judge in a tough position politically and personally: No matter how he ruled, he was bound to come off as biased, insensitive, or both.”)
Following oral argument in the Supreme Court on the Prop. 8 case, I thought of Judge Walker and reread the Mother Jones article. I then began to question whether a judge’s religious or spiritual inclinations were relevant to the judicial role. If Judge Walker’s sexual orientation matters, doesn’t the fact that the majority of the Justices belong to the Catholic church matter every bit as much? See Geoffrey R. Stone, Justice Sotomayor, Justice Scalia and Our Six Catholic Justices, Huffington Post (August 28, 2009) (the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago asked “whether and to what extent judges are and should be influenced by their religion, their ethnic background, their race, their life experiences, and their personal values.” ) In turn, that got me thinking about whether my personal life mattered to my role as a federal trial judge.
Several years ago, I enjoined the enforcement of a local ordinance that banned pro-life picketing at a Protestant church. One of the congregants was a doctor who performed abortions and the picketers evidently wanted to drive the doctor from his church. I ruled that the pro-lifers could show gruesome photographs of dead fetuses on the sidewalk in front of the church even though those photos frightened little children who were attending church services. See Olmer v. City of Lincoln, 23 F.Supp.2d 1091 (D.Neb.,1998), aff’d, 192 F.3d 1176 (8th Cir.1999). In doing so, and among many other things, I alluded to St. Patrick’s Cathedral in New York and how the Nebraska ordinance would, if applied there, prohibit pro-life Catholics from practicing their faith on the adjoining sidewalks of their famous church.
At the time, one of my daughters supported herself by tending bar. By all accounts, she was a pretty good bar tender. While pouring a drink for a lawyer one evening, the subject of my ruling came up. The lawyer had no idea that she was speaking to the daughter of the judge who had issued the ruling. Anyway, during the discussion, the lawyer told my bar tending daughter that the ruling was driven by the well-known fact that I was a dyed-in-the-wool Catholic. Like all good bar tenders, my daughter merely nodded, smiled and kept pouring the booze.
Keeping in mind the lawyer’s fixation on my supposed Catholicism, let me add five details:
1. Neither one of my parents was religious. In fact, after consuming large quantities of Irish whiskey, my mother, an intensely devoted alcoholic, would frequently rage against the Papists. She never saw the irony in her love of Irish whiskey and her dislike of Catholics. In any event, and not to put too fine a point on it, I am an agnostic. I have been all my life.
2. The bar tender in the foregoing story, was a bit of a wild child. After my first wife passed away, for five years, I raised our three children as a single parent. At my insistence, and hoping to instill some discipline, the wild child (later to become a gifted school teacher) attended a Catholic (all-girls) high school. However, and so far as I know,the dear child remains unaffiliated with any particular religious denomination.
3. After years of service in the State Department, and spending a lot of time in Arabic speaking places, my cousin, who was raised as an Episcopalian, converted to Judaism. After his retirement, and following a meticulous research effort, he wrote a book questioning, among lots of other things, whether our grandmother’s German immigrant family was Jewish. See George Kopf, Looking for Almeda: A Story of Immigration, Freedom and Faith, Amazon Digital Services, Inc. (2011).
4. My late wife (the mother of the bar tender) was raised by a Presbyterian father and a Mormon mother who were both steady practitioners of their respective but very different faiths. Nominally a Protestant, my wife taught in a Catholic school. Before passing away at age 40, she frequently took our kids to the Methodist church.
5. My second wife, the kids’ step-mother, is the oldest of seven children raised in a devout Catholic family. She was educated in Catholic elementary and secondary schools. Notwithstanding her deep love for the religion of her youth, she refuses to attend Mass because of the church’s stance on women.
So, does a federal district judge’s personal life matter? Well, Duh!* Of course it does. But not in the cartoon-like manner that has become the hall-mark of dolts like the lawyer who slurped down drinks poured by my daughter, the bar tender. Federal trial judges have far more complex (and interesting) personal stories than silly stereotypes about sexual orientation or religion can capture.
*If Nobel prize winners can use this formulation, then plebeians like me can do so too. See Paul Krugman, Today in Well, Duh, N.Y. Times (March 3, 2013). Most of the time, I find Mr. Krugman to be a tiresome (but brilliant) ideologue, but that’s another matter.