Tuesday, June 14, 2011

I think I have a new favorite judge

Once upon a time, a judge presided over a trial at which one side presented absolutely no viable case and then issued a lengthy, thoughtful, well-reasoned decision ruling against the side that had no case. The losers, having had no evidence and no argument on their side, turned their attention to the judge. It must be the judge's fault their failure to present evidence or any sound legal evidence led to them losing! Bad, biased judge!

Remember that? The Prop 8 backers put on a horrible, terrible, no good, very bad case and lost to no lawyer's great surprise. They then pitched a fit because the judge was gay. Eww! Gays are icky and bad, they said. We nice, good, straight people can't possibly be expected to have our cases judged by one of them! Ok, that's not quite what they said. I'm paraphrasing.

So the Prop 8 backers got a hearing yesterday, a chance to explain why Judge Walker's "sexual proclivities" meant he should have recused himself. Actually, by this time they had actually amended their complaint to make it clear they were not concerned about his proclivities, but about his long-term same-sex relationship which necessarily gave him a greater stake in the outcome of the Prop 8 case. Because if Prop 8 were found unconstitutional, the judge and his honey could finally get married just like they always wanted. Not that they could show that Judge Walker was itching to get married. And, of course, if Judge Walker had wanted to get married so badly, it seems like something he might have done in that 18-month window of time when same-sex marriage was legal in California.

It was an obnoxious, disgraceful argument to claim that Judge Walker should have recused himself because of his relationship. Happily, it didn't take long for the judge who heard the motion to issue his decision denying it. You can read it here. But I just want to include this one section because I love it so.

Alternatively, Defendant-Intervenors contend that Judge Walker should be disqualified
because his same-sex relationship gave him a markedly greater interest in a case challenging
restrictions on same-sex marriage than the interest held by the general public. The Court rejects this argument on two readily apparent grounds. First, it is inconsistent with the general principles of constitutional adjudication to presume that a member of a minority group reaps a greater benefit from application of the substantive protections of our Constitution than would a member of the majority. The fact that this is a case challenging a law on equal protection and due process grounds being prosecuted by members of a minority group does not mean that members of the minority group have a greater interest in equal protection and due process than the rest of society. In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right. One of the duties placed on the shoulders of federal judges is the obligation to review the law to determine when unequal treatment violates our Constitution and when it does not. To the extent that a law is adjudged violative, enjoining enforcement of that law is a public good that benefits all in our society equally. Although this case was filed by same-sex couples seeking to end a California constitutional restriction on their right to marry, all Californians have an equal interest in the outcome of the case. The single characteristic that Judge Walker shares with the Plaintiffs, albeit one that might not have been shared with the majority of Californians, gave him no greater interest in a proper decision on the merits than would exist for any other judge or citizen.
Amen, Judge Ware. Amen.

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