Prop 8 Revisited

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About a year ago, we had a thread on Prop 8 (a ban on same-sex marriage) being thrown out in California for being ruled unconstitutional. Since then, Judge Walker who issued that ruling has retired, and publicly admitted that he is gay, and in a long-term same-sex relationship. The lawyers in favor of upholding the ban have asked the new federal judge who replaced Walker - James Ware - to make his own ruling on the case because Walker was not impartial and should recuse himself.

It doesn't seem like that's going to happen. The judge asked the lawyers seeking to re-open the case if they felt a black judge should recuse himself in a civil rights case, a female judge should recuse herself in a gender discrimination case, or a Hispanic judge should recuse himself in an immigration case. In each instance the lawyers conceded that it would be unprecendented for such to happen.

An interesting read:

Link.

 

Oh yes, that nonsense still festers? Long live the culture war.

The case they make against retired Judge Walker is a legally frivolous publicity stunt and a final insult to Judge Walker. Some sore losers they are.

America has some pretty serious problems right now, not to mention the two wars, an economic crisis but those religious nuts have nothing in mind but their own salvation. If they don't fight the Gay now, God (Zeus?) will get mad, and send tornadoes. Or earthquakes. Or Obama (who will cause tornadoes). Or, heaven forbid, they may get left behind (like those darn Lutherans, Jews or, ghasp, Catholics, who all have in common that they are unsaved)!

 

I am in favor of gay marriage. That being said, I believe the judge should have recused himself from the case. His involvement was obviously going to be a lightning rod for the Prop 8 supporters and as a judge I am going to assume he is somewhat intelligent so he should have known that. I know the judges and lawyers are rallying around him, but this was a case where they really needed a judge who without question was going to be objective. I feel the same if it had been a heterosexual judge who had a gay child. I feel the same way if the same judge had disowned his gay child.

In many cases the appearance of being objective is just as important as actually being objective. In my industry we have to be independent and objective in "appearance and in fact" before we can audit a company. That may taint my opinion of this.

 

EDIT: Blaming it on the gay judge is just one at least superficially plausible if legally frivolous way for the anti-gay Jihadis behind Prop8 to perhaps achieve a possible appeal of the verdict on grounds of the asserted the technicality that the judge should have recused himself because he was gay. This is not a reasonable legal argument but merely straight-faced pretending. Even when it predictably fails, it's at least keeping the cause in the news./EDIT

Aldeth summed it up succinctly: The judge asked the lawyers seeking to re-open the case if they felt a black judge should recuse himself in a civil rights case, a female judge should recuse herself in a gender discrimination case, or a Hispanic judge should recuse himself in an immigration case. In each instance the lawyers conceded that it would be unprecedented for such to happen.

Or what about a Jewish judge being expected to recuse himself because the case involves a Jewish party? After all, the appearance of being objective may be in doubt in the mind of some Nazi. It would be nonsense. Why bother recusing yourself if there is no reasonable point to the allegation and correspondingly, no reasonable point in doing so?

All it would have done would have been to implicitly vindicate the frivolous allegation of bias against Walker (he recused himself after all). No quarter.

The loons will always doubt, with or without an actual reason. Think of the ludicrous travesty the right makes about Obama's birth certificate. On such cases there simply is no way not to feed the trolls, because it is not about arguments in the first place.

EDIT: They don't want the ruling and take whatever they get. A gay judge? Ok, they can go with that. They won't convince you and me but it isn't about us anyway, but their flock which will be greatly inclined to believe it to be part of that devilish plot that the demonic forces of secular humanism have hatched against God's Plan (after all that just reflects their narrative of current events). Everything but conceding defeat and acknowledging that their idea of what the law should reflect conflicts with the California constitution. If that appears so, then only because liberal or gay judges interpret it wrongly. Because it must be like that. See? So easy. All that's missing is David Barton divining as an expert witness out of coffee dregs that the California Framers always wanted to ban gay marriage because California was founded as a "Christian Nation"./EDIT

 

I see your point Snook, but I think that's a slippery slope. What if a tax law is brought up in court? Would all judges have to recuse themselves, because they all pay taxes? Or what about land ownership? Would only judges who rent be able to hear the case? Or the new child seat safety laws that have been put in place in several states - should only judges who don't have children hear the case? I think you see my point.

EDIT: As far as I'm aware, the only time you see a judge recuse himself are in cases involving companies where the judge has a financial interest in one or more of the companies through stocks or some other investment.

It should also be noted that Walker has never got a civil union, even though he could have, even while servivng as an active judge, so there is no indication that he was even seeking to marry his partner at the time he made his ruling.

 

I think you are both looking at the extremes and not the reality. Should a black judge recuse himself from a case involving civil rights? The answer is "it depends". If his father was hung from a tree in Alabama and he has been a civil rights leader I would say yes. If he comes from a non-racially charged environment I would say no.

When you are summoned to jury duty you have to fill in questionaires. If you or someone you know has been the victim of a sexual assault crime you are pretty much guaranteed that you will not be put on a rape case. If the juries get screened for biases what makes the judges so special that they have the ability to look past their bias?

In regards to this case, the judge spent his entire carear as a closeted homesexual. Now that he is off the bench he has come out. Now I can see how some people could look at this and see nothing, but I can also see how people can very easily think he could not be bias free.

I don't see this as that much of a slippery slope argument. I think the basic default should be if there is an appearance of bias/conflict of interest you should recuse yourself. Your arguments about land, child seats, or taxes don't carry the same weight. You aren't going to find many people who would believe that a judge should recuse himself in those situations. You don't have to look far to find people who believe Walker should have recused himself.

A judge without the wisdom to know when he should recuse himself makes me question the wisdom of his rulings.

 

But that is my point. He may believe he can be impartial, and for all we know he was impartial. Heck he may have done a brilliant piece of legal ruling. The problem is if people don't believe he is impartial he has failed. In this case it isn't just a couple of whack jobs who think he should of recused himself for bizarre reasons.

 

And based on the second judge's questions, he appears to think Walker was impartial. I'm sure he has read Walker's ruling in its entirety and sees merit in Walker's reasoning. And that's not just Judge Ware's opinion. Pretty much every legal analyst I have seen said the lawyers defending Prop 8 didn't do a very good job. Who knows if a different team of lawyers would have done better, but their defense was lacking. Their "star witness" was someone who said he got the information he needed from the internet, whcih he felt sufficed as a primary source.

 

Aldeth,
IMO the bold assertion that the judge was biased (q.e.d. since we lost) because he was gay is part of them not doing a very good job. The argument is as ludicrous as it is insulting the professional integrity of the judge). The verdict Walker issued speaks for itself.

 

I agree with BTA, Ragusa, Aldeth, etc....

Which people? That is partly why we have an appeals process, for those who don't think a ruling or outcome was fair, among other reasons. However, I'm not sure what we do in the case of the Supreme Court, like where Thomas might consider recusing himself from the health care issue. I guess we just have to live with it.

 

Are you looking for names? Clearly there are enough people who think so otherwise this wouldn't even be an issue. If nobody thought it was issue would this discussion be happening?

If Walker was a Mormon and ruled the other way are you willing to say that the anti-prop 8 crowd would have put down their signs and said "I guess we were wrong"? Of course not, they would have been howling ten times as loud that a Mormon shouldn't have heard the case and the media would have joined them at full volume. To deny that is to be naive. I would love to hear Ragusa defend the Mormon's professional itegrity.

 

Even I think the request for the gay judge to recuse himself is ridiculous.

 

Snook,
indeed, if Walker was Mormon and had issued the same ruling that would be a major indication that he was not influenced by his faith at all. If he had ruled the other way and made an argument reiterating Mormon articles of faith that would be a major problem. Alas, neither of that is the case.

The ruling is unassailable legally. So the Pop8 crowd tries to attack in on procedural grounds - by asserting that the judge was biased. But that is just that, an assertion, a smear, and only because it is made and reiterated to a lot of people inclined to believe such nonsense that doesn't make it true.

While so-called experts who call themselves 'scientists' disagree, a sizeable number of Americans believe the earth is 5000 years old. Does that make it true? Any anyway, should we care beyond the nuisance and entertainment factor that comes with them fervently clinging to the inerrant literal truth of the Holy Bible?

If lawyers across the board and political spectrum agree that a ruling is ok legally, and that Walker doesn't need to recuse himself because there is no reason to and no point in it, then that is a pretty good indication that the people who claim and think otherwise are probably wrong - wrong on the facts, wrong on the legal assessment - and that this their erroneous views can be discounted as irrelevant. Of course those who hold the erroneous and irrelevant view never like to hear that.

 

Not really. A very vocal minority can be, well very vocal. That doesn't add any clarity. How many people are enough? Should a judge do a poll to find out if he should recuse himself from a case? I think the whole argument about "some people complaining, so he should recuse himself," is problematic.

 

Exactly - I have no doubt that there are some who fervently believe that he was biased in his ruling. And perhaps some of them came up with the money to pay the lawyers' fees for bringing this appeal. Or maybe the lawyers themselves agree with it - who knows? I read a poll not long ago that nearly 25% of Americans beleive that the Bible is literally true - so that's tens of millions of people - does that make them right?

 

That's that beef many Americans apparently have with this vaunted elitism. Not every opinion is equally valid. Some people are just mistaken or nuts, and by rule of thumb almost always resent being told that.

I have this Turkish colleague who insisted to me that virgin birth is a reality, because her aunt from Anatolia told her so (context: Said aunt insisted that her child was not illegitimate but the result of a miracle. Naturally. How can my ideas about cause and effect to stand up to such authority?). Credulous people or outright nuts tend to have mistaken or nutty views that can be safely dismissed as mistaken or nutty after brief examination and then ignored. It really saves a lot of time.

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EDIT: The ruling is out: California Judge Upholds a Ruling on Gay Marriage

Naturally. The argument they will make will obviously be that Judge Ware, too, was not fit to rule, because he, as a judge, stands to benefit from the decision over judges conduct. To dispel any possible appearance of bias he should have recused himself. *irony alert*