LOS ANGELES — It used to be considered bad form to out gay public figures - but now California judges are being asked to reveal their sexual identities in the name of diversity.
The Judicial Applicant and Appointment Demographics Inclusion Act, which took effect Jan. 1, requires the state to ask its 1,600 judges whether they are homosexual. The goal is to “promote and increase the representation of lesbian, gay, bisexual and transgender people in the state’s judicial branch,” according to Equality California, which pushed for the bill.
Equality California spokeswoman Rebekah Orr emphasized that the law does not require judges to state whether they are gay.
“The information is voluntarily given and compiled to help record the diversity of the California court,” Ms. Orr said. “It’s completely optional. We are not requiring people to out themselves, but they can if they want to.”
The state Administrative Office of the Courts released the results of its first survey on gay judges Thursday.
It’s clear that not all magistrates are on board. Fully 40 percent of judges refused to state their sexual orientation on the questionnaire, which also asks for gender, race and ethnicity.
“It’s a new question and each judge may have his or her own reasons for choosing not to answer,” office spokesman Philip Carrizosa said. “It may be that in that 40 percent there are judges who are straight who have decided, ‘I’m not going to answer; that’s too private.’ “
Of the judges who did respond, 57.7 percent said they were heterosexual, 1.1 percent said they were lesbian, 1.0 percent said they were gay men and 0.06 percent identified as transgender. That percentage represents one judge in Alameda County who is openly transgender.
The legislation, sponsored by state Sen. Ellen Corbett, a Democrat, passed on largely party-line votes without fanfare, but it has come under fire by conservatives who accuse the gay-rights lobby of wanting to have it both ways.
While advocates would have vilified anyone who tried to expose a gay public figure in previous years, “[n]ow, however, that Proposition 8 has been attacked in court, and the ruse no longer needs to be maintained, it’s okay to ask questions about who is and who isn’t ‘gay’ or ‘lesbian’ because the answer to that question will help ensure there are enough like-minded justices to keep the homosexual agenda afloat in California,” Alliance Defense Fund attorney Austin Nimocks said in a column.
The sexual orientation of judges emerged as a hot-button issue after the trial of Proposition 8, the 2008 California initiative that banned same-sex marriage. U.S. District Judge Vaughn Walker ruled Proposition 8 unconstitutional, but the measure’s supporters filed a lawsuit challenging the ruling because Judge Walker had not revealed that he was involved in a long-term gay relationship.
Attorneys for ProtectMarriage argued that Judge Walker should have recused himself from the case and that the ruling should be overturned. The 9th U.S. Circuit Court of Appeals rejected that argument while upholding the verdict in a Feb. 7 decision.
Supporters say that having a number of gay judges on the bench is important to ensure that Californians have confidence in the fairness of their judicial system.
“Generally, we know the courts have a history of not being as diverse as they ought to be and not representing the diversity of the general public,” Ms. Orr said. “A lot of people have asked me how diverse are our courts, and we don’t know because we’ve never checked it. This is the first step in the process.”
Critics say the law may come back to haunt judges who check the box stating they are gay. The state agency breaks down the responses by jurisdiction to help protect the privacy of the judges, but sensitive information has a way of leaking.
“But given how easily even highly classified information protected from disclosure by criminal laws gets leaked, why would any judge trust that promise?” Ed Whelan said in National Review Online.