Sunday, August 8, 2010

More on Prop. 8

On Wednesday, Judge Vaughn Walker issued a decision declaring California's Prop 8 to be unconstitutional.  Every review I have read of his decision seems to agree that he wrote a thorough, well-reasoned, rational opinion soundly and squarely based in U.S. Supreme Court precedent.  And he's hardly the first judge to find that banning same-sex marriage violates the notion of equal protection under the law.

But rumor has it he's gay.  It's been written as a fact in several news articles I have found today.  But the judge himself hasn't offered any comment (nor would I expect him to).  It sort of has an "everyone around the courthouse just knows" feel as people around the courthouse typically do just know these kinds of things.  So, for the purposes of this blog post, we'll just assume the assumption that he's gay is correct.

So what?  Well, some people seem to think it's an issue worth talking about.  The AP wrote a story about it.  According to one headline "Irate Prop.8 backers" think the judge isn't impartial.  I just have to share this quote from the article because it's too delicious:

"Judge Walker should have recused himself from this case since he is a practicing homosexual," wrote Bryan Fischer of the American Families Association. He added: "His own personal sexual proclivities utterly compromised his ability to make an impartial ruling in this case."
It is beyond offensive to suggest that a gay judge can't possibly issue an impartial ruling on a legal question involving homosexuality.  Must Justice Thomas recuse himself from any case involving racial discrimination?  Should Justice Ginsburg not have been involved in the Lilly Ledbetter case of pay disparity between the sexes?  Of course not, but I don't believe anyone would have suggested that race or sex of a judge as a personal characteristic would "utterly compromise" that judge's ability to, you know, be a judge.

What is it about the characteristic of homosexuality that is different?  What is it that allows people to think that being gay is a characteristic that will necessarily overcome rational, legal thought?  Given that the only real opposition to same-sex marriage is based in a religious, moral disapproval of homosexuality, it's hard for me not to think that concerns about this judge are nothing more than another manifestation of that disapproval.  I mean, following the logic of Bryan Fischer, wouldn't any married, heterosexual judge also have needed to recuse him or herself from this case?  Same-sex marriage does pose such a tremendous threat to "traditional" marriage, after all, that any married judge would have had to hold in favor of Prop. 8 out of self-preservation.  But that's a bias Bryan Fischer and the Prop. 8 backers wouldn't object to.

Hundreds of straight judges would have issued an opinion matching Judge Walker's result.  We can only hope that most of them would have taken the time to be as thorough and careful of existing law as Judge Walker was.  It really doesn't take a gay man to see that arguments in favor of same-sex marriage bans just don't hold water.


Anonymous said...

The much more serious accusation against Walker's ruling is that those who have reviewed it are guilty of confirmation bias. Several legal bloggers have reported on it, and I think their (detached?) analysis has some weight.

S said...

So you've read Jonathan Adler's brief post on the Volokh Conspiracy. It's not an "accusation" against Judge Walker's ruling if some of those praising it are predisposed to agree with it. That's often the way of things when lawyers analyze opinions. We tend to think the reasoning is sound when it is the same reasoning we would follow. All I can do is assure you that I have in the past been critical of opinions that yielded what I thought to be the right result. And I've praised well-written opinions with which I disagreed.

Nance said...

I think it's the proverbial slippery slope to say that a homosexual judge has to recuse him or herself from ruling on the legality of something like Prop 8. Does that mean that a Supreme Court judge cannot rule on a Second Amendment issue if he/she is a card-carrying member of the NRA? Does it mean that a judge of Hispanic ethnicity may not rule on the immigration law challenge now?

The very mantel of a judge's title depends upon the confidence in his/her impartiality.

Moxie said...

Um, so if this judge is supposed to recuse himself because he is gay and therefore cannot issue an unbiased opinion in a case involving gay marriage, then wouldn't a straight judge have to also recuse himself (or herself) because the case involved the question of "preserving" marriage for opposite sex couples? Sounds like the only judge capable of issuing a so-called unbiased opinion in the case would be an asexual judge under that rationale. Good luck finding one of those!

Anonymous said...

"Um, so if this judge is supposed to recuse himself because he is gay and therefore cannot issue an unbiased opinion in a case involving gay marriage, then wouldn't a straight judge have to also recuse himself (or herself) because the case involved the question of "preserving" marriage for opposite sex couples?"

No. A homosexual will almost always be in support of same-sex marriage whereas a heterosexual will not always be a protector of traditional marriage. Ever hear of the Gay-Straight Alliance? Don't get me wrong, I'm for gay marriage, but I had to correct that logical fallacy.

S said...

Anon, I'm afraid yours is the only comment with a logical fallacy. See, Moxie was taking the arguments of the Prop. 8 backers to their logical extreme to show how illogical those arguments are. (I made the same point in my post, too.)

You, on the other hand, are actually committing the true logical fallacy of believing that a gay or lesbian judge would necessarily be in support of same-sex marriage. It's not just illogical and untrue, but it's a pretty offensive view to take. See, either way, a judge's sexual orientation is not dispositive of that judge's interpretation of equal protection law.

Anonymous said...

I wasn't referring to Judge Walker, but homosexuals in general. If you continue to insist that the majority of homosexuals don't support same-sex marriage (I said almost all, not all) and believe that to hold such an opinion is offensive, I suppose we'll agree to disagree. I think it's fairly obvious that most homosexuals support the idea homosexual marriage, but that's just me, I suppose. Sorry if my line of logic is "offensive."

Even if I were implying that Judge Walker was biased in his opinion, it's not as if that practice is uncommon. Ever hear of judicial activism?

Again- I AM FOR GAY MARRIAGE. You probably don't want to use strong language and tear down someone who's on your side. Being unnecessarily divisive is the last thing we need.

S said...

Anon, this post is about the question of whether a gay judge, simply by virtue of being gay, can't be impartial on the legal question of marriage and the equal protection clause. Your response seemed to indicate it was logical to assume most gay judges would, indeed, be so biased. I will call it like I see it: that view is offensive.

Sure, on a personal level, I can agree that most gay people are in favor of same-sex marriage (though I know some who are not). But it is a big leap to suggest that those personal views would necessarily cloud a judge's legal judgment. An offensive leap.

Oh, and "judicial activism" is the biggest joke of a phrase ever. All judges are active: they act.

I'm sorry if I'm not being duly kind to someone who is on my side, but so far you've called out a friend for a supposed logical fallacy that wasn't, suggested it's ok to question whether being gay in and of itself makes a judge unfit to hear a case, and used the empty, meaningless phrase "judicial activism". I don't tend to let that kind of nonsense go without comment.

Anonymous said...

First of all, I am not saying that Judge Walker was indeed biased in his ruling; all I am saying is that it was possible for any judge over any case to be biased and let that bias effect the ruling (not because he/anyone else is a bad judge-- because we're fucking HUMAN). For example, if a fundamentalist Christian justice ruled against same-sex marriage, I would question his intentions as well! And I know DAMN WELL you would too! AGAIN, because you don't seem to be understanding, I am not saying that Judge Walker was biased, I am saying that it IS PLAUSIBLE for him to be biased. Also, I NEVER SAID JUDGE WALKER WAS UNFIT TO HEAR THE CASE! WHAT THE HELL! Quit calculating false ASSumptions. Gawd.

What the hell? Are you really a public defender? You obviously have no idea what the term "judicial activism" means. It is not simply a judge doing his job- judicial activism is a political term used to describe judicial rulings that are suspected to be based upon personal and political considerations other than existing law. For example-- Justice Scalia is personally adamantly opposed to abortion; however, he puts his bias aside and realizes it is protected under the 14th amendment. While I disagree with Scalia on a plethora of issues, I really commended him for that. Now, if he were a JUDICIAL ACTIVIST, he would have pursued all means necessary to prevent abortion, completely discarding the Constitution.

Last, let me ask again, are you really a public defender? I have a very, very difficult time believing you. If you were, I would assume you'd be much smarter and make more logical conclusions rather than completely misinterpreting every single thing I'm saying. Also, if you were really a public defender, you wouldn't be so sensitive. You should be used to dissent. This is politics and law: Grow thick skin or GTFO.

"I'm sorry if I'm not being duly kind to someone who is on my side." Alright... I guess I have to agree with every single thing you do before you're kind to me. Sounds like the kind of people who follow Michael Savage :S

Anonymous said...

Ahh, piss. I didn't mean to say Justice Scalia. I meant Justice Blackmun.

S said...

I say granting that "it's plausible" that he was biased simply because he is gay is offensive. I understood that to be what you were saying all along. I find it offensive. I know you never said he was unfit, but granting that the premise that he could be merely because of his sexual orientation is offensive. It's really not hard to understand, is it?

I would not expect a fundamentalist Christian judge to recuse him/herself from a same-sex marriage case. Since you don't know me, I will expect you to defer to my sense of self on this point.

You obviously don't know any public defenders (or other lawyers) because if you did, my disdain for the term "judicial activism" would not surprise you. I don't know anyone in the legal profession who really gives that phrase any merit.

I have a thick skin and am just fine with dissent. I just like it to be reasonable and well-defended. I'm not fine with offensive views about gays. Illogical comments drive me nuts. And people who rely on empty, hackneyed ideas like "judicial activism" should not go unchallenged.

How thin is your skin that you can't handle being challenged?

ps- I'm really glad you corrected your Scalia mistake there, 'cause you can bet I would have called you out on that.

Anonymous said...

I guess I can't simply fathom how my relying on consistent human behavior warrants being called a word as strong as "offensive." I'm just basing my belief on man's tendency to pursue self-interests. I'm not even condemning it-- I'm completely fine with it because I understand it is inevitable. Hell, I freely admit that it's impossible for me to be unbiased about anything.

Offensive views about gays?!?!? Okay, I know now that you know what I'm trying to say so STOP making ridiculous statements! My "offensive" comment has nothing to do with the fact that Judge Vaughn is potentially gay! I am for gay marriage! I love gay people! I am saying that he is HUMAN and as a HUMAN, he (and ANY other justice) is capable of being biased. NOT because of his homosexuality, because he is HUMAN! This argument is not about Judge Vaughn even-- I'm saying that because ALL justices are human, we all have the potential to be biased and allow personal feelings to misinterpret the constitution. Again, I am NOT saying that Judge Vaughn misinterpreted the Constitution as I have made it quite clear that he did not; I am saying that it IS possible for any justice to allow personal feelings to get in the way of a court ruling. I honestly don't understand what is so offensive about that!

"I would not expect a fundamentalist Christian judge to recuse him/herself from a same-sex marriage case. Since you don't know me, I will expect you to defer to my sense of self on this point." I guess we disagree because I would.

Judicial activism scenario: say a judge who has large investments in the oil industry overrules a law that would place extensive regulations on companies like BP, limiting their ability to make more money, and ultimately affecting the judge's investments. You would not question his bias in the matter if he presided over the case? I sure as hell would.

No, I don't mind being challenged. I simply hate it when people cannot understand what I'm trying to say and twist my words. But apparently you did understand me and we just have radically different ideas of logic, human nature and what is "offensive."

S said...

What you just wrote in that last comment is not where you started. Your original comment suggested that it was valid to question whether any gay judge could fairly rule on same-sex marriage, but that it wasn't equally fair to question whether any straight judge could. I find that offensive. (That a gay judge is more likely to be biased than a straight one...) Trying to now pretend that you were just expressing the more general view that all judges are capable of being biased by their own views doesn't save it in my view. And, frankly, you're trying a little too hard to convince me just how gay-friendly you are.

And, by the way, if all judges are capable of being biased by their own personal views, why wouldn't Moxie's point about straight judges also having to recuse themselves be valid? Don't most people have a personal opinion on same-sex marriage, whether for or against? Gay, straight, bi, we most all have opinions on same-sex marriage. Why are gay judges the ones most likely to have their legal judgment "clouded" by those personal opinions? Are you getting yet what's offensive about that suggestion?

As for judicial activism. The hypo you gave is about judicial ethics, not activism. Well, that's what I would say. I don't really know what judicial activism is. No one does. The very man who coined the phrase never defined it. Most people use the empty, undefined term only to refer to decisions with which they disagree. Hence the disdain for the term amongst my colleagues.

Anonymous said...

Ohhhhh no, that's not what I meant when I said your friend's logic was inconsistent. I was not saying that a gay judge would be incapable of being unbiased or that he is more likely to be biased. I completely agree with you there: everyone, regardless of sexuality, has an opinion on same-sex marriage and is at risk of being biased.

I simply had a problem with your friend's "if A, then B" logic. She seemed to equate a gay judge ruling in favor of gay marriage is just like a straight judge ruling in favor of traditional marriage. However, the marriage equality debate is not about homosexuals vs. heterosexuals, it's about pro-gay marriage vs. anti-gay marriage.

Does that clarify anything at all?

Also- you may think I am "overdoing it" in trying to convince you that I support gay rights and gay people, but I feel like I HAVE to because you keep on insisting that I am not! And that's just not true or fair.

As for judicial activism/judicial ethics... okay. I hear you. that makes sense.

S said...

Do you understand that Moxie and I were both taking the Prop. 8 backer's two arguments, that a gay judge must be biased and that gay marriage is a threat to straight marriage, to its logical extreme? Her point was entirely logical. The fact that you don't see it shows that you are not.

How is a gay judge ruling for gay marriage different from a straight judge ruling for "traditional" marriage?

Anonymous said...

No, I get that you were using the Prop 8 backer's logic against them. Basically, I just think it would have made more sense to liken a homosexual judge ruling in favor of gay marriage to a religious judge ruling in favor of traditional marriage because gay marriage isn't a homosexual vs. heterosexual issue.

Anonymous said...

So, even though I disagree with the Prop-8 backers, I'm interpreting their skepticism regarding Judge Walker's ruling draws from their worry over pursuing his personal self-interests, not the fact that he is homosexual (because he will indeed benefit through insurance rights, hospital visits, economic equality, increased tolerance, etc. as a result of gay marriage and rightly so).

Again, I think Judge Walker's justification for overturning Prop 8 using the equal protection clause was completely valid and constitutional. I am simply trying to explain why I don't think the reverse logic works.

S said...

I think you're being too generous to the backers of Prop. 8. It seems clear to me from the quote I included in their blog post that their concern stems from his sexual orientation and his sexual orientation alone. Fischer clearly said the judge's "own sexual proclivities" were the problem.

Thus, I think the proper comparison is between a straight judge and a gay judge.

I agree that gay marriage isn't a gay vs. straight issue. I'm just not sure that the Prop. 8 backers would agree and it's their objection to the judge that this blog post is about.

Ideas said...

John Locke noted in his Second Treatise on Civil Government that "it is unreasonable for men to be judges in their own cases (because) self-love will make men partial to themselves and their friends." That sentiment, undoubtedly true, is actually codified in federal law. A judge is required to disqualify himself in any proceeding "in which the judge's impartiality might reasonably be questioned, including but not limited to instances in which: (a) the judge has ... personal knowledge of disputed evidentiary facts concerning the proceeding; [or] ... (c) the judge knows that the judge ... has a financial ... or any other interest that could be affected substantially by the outcome of the proceeding."

Ideas said...


If Judge Walker is indeed in a long-term, same-sex relationship, he certainly has an "interest that could be affected substantially by the outcome of the proceeding" - he and his partner are now permitted to marry! - and that, according to Judge Walker's own finding, has financial benefits as well. Such conflicts would have required recusal, and cannot be waived by the parties.

S said...

So, can judges not rule on issues relating to, say, income tax? Because any judge would have a conflict, right, because that judge has an income and so has a financial stake then?

I give you credit for quoting John Locke (though it's unnecessary: any lawyer would just go straight to the rule), but I think you're taking the idea of potential bias too far. I'm quite certain the disappointed Prop. 8 backers are taking it too far by suggesting that the judge's "sexual proclivities" compromised his ability to be impartial.

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