To see the original quote being analyzed, go to this post.
First a disclaimer. I am only interested in analyzing the logic of the arguments being quoted. I am not going to pass judgement on the ethics of the arguments or who is right or wrong. Specifically, I am interested in the analogy being used.
Byran Fischer’s Argument: Being Homosexual Means You Can’t Make a Good Judgment
First, let’s take the statement by Byran Fischer, issues director for the American Family Association. Bryan argues that Judge Walker should have “recused himself from a case in which his own personal sexual proclivities utterly compromised his ability to make an impartial ruling.” The implication is that Walker was biased and therefore not an appropriate judge and his ruling should be thrown out.
How good is this argument?
It seems to me that if we take it literally, there are serious problems with the logic of the argument. To prove this point, we just have to imagine Jonathan Rauch as the one making the judgment. Jonathan Rauch is a homosexual man who authored a book called “Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.” He is in favor of Gay Marriage but has shown a great deal of sensitivity to the needs of other communities, particularly religious communities. This has led, in the past, to his taking a moderating stance on gay marriage being legalized via the judiciary.
I suspect that if Jonathan Rauch was the judge, that Fischer would have few problems with it, even though he is homosexual. On the other hand those in favor of gay marriage probably would not want Jonathan Rauch making a judgment on Prop 8 since we already know (or think we know, anyhow) how he feels on the subject of judicial legalization of gay marriage.
Therefore Fischer’s argument is, if taken literally, not a solid logical argument. One’s sexual orientation by itself is not a factor in a judge making a judgment, probably even to Fischer.
Can Fischer’s Argument Be Interpreted to be Stronger?
However, the suggestion that Jonathan Rauch as Judge probably wouldn’t satisfy those in favor of gay marriage suggests that we might be able to interpret Fischer’s argument in a stronger form.
It’s important that we take any argument and try to not take it so literally that we fail to catch the underlying meaning. Therefore, taking an argument (even one we disagree with) and putting it into it’s strongest possible form is good practice.
Now I don’t personally know if Judge Walker is actually a homosexual or if this is just a rumor started because he gave a certain sort of judgment. However, we don’t actually care at the moment because we are only analyzing logical arguments being made and the argument needs to be generalized to any one judging Prop 8, not Judge Walker specifically. 
It seems probable that Fischer is not so worried about whether or not Judge Walker is homosexual but rather if his homosexuality predicts gay marriage activism or a specific view of marriage (such as right based vs. contract based marriage). 
Furthermore, we could interpret Fischer as being concerned that a homosexual is more likely to have a personal stake in a gay marriage judgment then a heterosexual judge.
Bias In Court Judgments
When we setup a court ruling – either by judge or jury – one of our top concerns in the process is if the person or persons making the judgment have a personal stake in the judgment. We do not want an alleged criminal’s mother on the jury because she has a personal stake in the outcome.
We could argue that the alleged criminal’s mother knows him the best and therefore is a strong candidate for such a role. But in reality, we know that having a personal stake in the outcome is most likely going to override her ability to really look at the issues the way we’d want a jury or judge to.
Gay marriage clearly affects different groups of people in different ways. Homosexuals are (at least in part) in favor of it presumably because it is believed it will reduce prejudice against them in all areas of life. Let’s admit that this is a legitimate concern on their part. Conservative Christians are against it presumably (at least in part) because they fear it will increase prejudice against their group. Let’s admit that this is a legitimate concern as well. Therefore there is a fair argument to be made that those two groups (Homosexuals and Conservative Christians) have a personal stake in the outcome of a court ruling on Prop 8 and therefore are more likely to be strongly biased towards a specific outcome.
So the strongest possible interpretation of Fischer’s argument is that he believes a gay Judge has a high likelihood of being strongly biased against Prop 8 not on legal grounds alone, but in favor of his own political worldview and his own stake in the outcome.
Some might argue that even if this is true, it’s more important to not make an issues out of a protected class. I will not assess this argument because it is not made in the quote I’m analyzing. But this should remind us that we are only assessing one argument, not the full situation.
Analysis of Ross’ Response
Let’s now take a look at the response from William Ross, an expert on judicial ethics and law professor at Samford University in Alabama.
Ross argues that:
…a judge’s sexual orientation has no more relevance to his or her ability to rule fairly on a case involving gay marriage than it would for a deeply religious judge or a judge who had been divorced multiple times.
I have already stated that this is true. However, we should be clear then that Ross’ counter argument did not get to the heart of the strongest possible interpretation of Fischer’s statement — that of correlation between being homosexual and not being neutral on the issue as we’d like a judge to be so that they are able to consider all groups and all sides of the argument.
Still, there is merit in Ross’ response. After all, he does correctly point out that a number of different factors should not in and of themselves be a concern. He includes sexual orientation, divorce, and religious beliefs. I believe he is correct about this.
Argument By Analogy: You’d Have to Be a Eunch
However, Ross goes on to say:
Under the logic of the people challenging the judge’s fitness to rule on a case involving gay rights because he or she was gay, one would have to find a eunuch to serve on the case, because one could just as easily argue that a heterosexual judge couldn’t rule on it either,” Ross said.
Now this is an argument by analogy and, it seems to me, a problematic one.
To understand why this is, we need to go back to Fischer’s argument and be charitable enough to assume he’s not talking about a Judge’s sexual orientation in and of itself, but rather that he’s talking about the probability that a judge’s sexual orientation predicts a strong bias towards one group of people over another.
The fact is that a man being heterosexual does not correlate to being personally for or against gay marriage. In the US, just under half of heterosexuals or for gay marriage and just over half are against. But this is not equally true for homosexual men. In other words, if we know a person is heterosexual we know virtually nothing about their possible biases on gay marriage but if we know they are homosexual we know with a high degree of certainty what his or her stance will be.
Can we find a more comparable analogy? I’d suggest we look to Conservative Christians instead. Conservative Christians feel they are poised to receive increased prejudice against their group if gay marriage becomes wide spread legally. (Whether or not this is true is irrelevant to the current assessment. We only need to know if they believe it or not and therefore feel they have a strong stake in the outcome.) Therefore, it does not suprise us that knowing someone is a Conservative Christian highly correlates with a stance against gay marriage.
A fair question is whether or not being for or against gay marriage should matter. Wouldn’t it be highly likely either way that any given judge already is for or against gay marriage? Just how many ‘neutral’ people are there out there on the subject of gay marriage? However, at the moment, that is not our concern. We are only assessing the logic of an argument, not trying to determine what the correct answer is.
In any case, given this analysis, it should now be clear that Ross should have said the following if he wanted to use a fair analogy:
Under the logic of the people challenging the judge’s fitness to rule on a case involving gay rights because he or she was gay, one would have to compare how those in favor of gay marriage would feel if Judge Walker has just ruled in favor of Prop 8 and we just found out that he was also a Southern Baptist Minister. One could just as easily argue that a Baptist Minister judge couldn’t rule fairly on Prop 8 either.
Now that we have the ‘right’ analogy, we now understand that this question cuts both ways.
Are those who are pro-gay marriage prepared to accept a judgment from a judge that is also a Southern Baptist Minister without claiming that a Southern Baptism Minister is unfit to make such a judgment and should have recused himself? Or would they have a point that a Baptism Minister should recuse himself because he has a personal stake in the judgment?
However, we also need to ask those that are anti-gay marriage if they are prepared to ask for a re-trial in this hypothetical situation based solely on the fact that a Conservative Christian has too much at stake and therefore should have recused himself? Or do they believe religion is a protected class and it’s unethical to make in issue out of a judge’s religion, even if we know it highly correlates to a bias on this issue?
 …not Judge Walker specifically. Finding out that Judge Walker is not homosexual would not make the logic of the argument less valid, it would merely invalidate one of the assumptions the logic was based on – therefore nullifying the whole argument, of course.
 A public contract view of marriage does not preclude gay marriage in any way. But it does imply how gay marriage has to be enacted.