A Philosopher's Blog

The Gay Judge

Posted in Ethics, Law, Philosophy, Politics by Michael LaBossiere on June 15, 2011
Gavin Newsom speaks out against Proposition 8 ...

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Before he retired, Judge Walker did two notable things. First, he ruled that the ban on same-sex marriage in California was unconstitutional. Second, he revealed that he has been involved in a committed relationship with another man. This revelation led supporters of Proposition 8 to argue that his ruling was biased because he could stand to benefit from the outcome.

The latest ruling on the matter, by Judge Ware, is that it is not reasonable to assume that judge cannot make an impartial decision about a law on the basis that the judge, as a citizen, could be affected.

This ruling seems to be quite sensible. After all, using the logic of the Proposition 8 supporters, a judge who was a voter could not rule on cases involving voters; a judge who had credit card could not rule on cases involving credit cards; a judge who breathed air could not rule on cases involving air pollution and so on. This would seem to show that their reasoning is flawed.

Now, it might be argued that the case of marriage is special and that the judge stood to gain because he might want to get married. Of course, if this sort of approach is used, then it would follow that a straight person could also not rule in this matter. After all, the straight person might want to get married (or be married). The defenders of Proposition 8 claim that they were acting in defense of straight marriage from the dire dangers posed by same-sex marriage. From this it would seem to follow that a straight person who might be interested in getting married (or is married) would also be biased and unfit to make a fair ruling. As such, by this sort of reasoning only a judge who had no possible interest at all in marriage (straight or same-sex) could make a fair ruling. It would seem somewhat problematic to find such a judge, but perhaps a eunuch would suffice.

 

 

 

 

In August, Walker ruled that Proposition 8 violated the Constitution’s equal protection clause.

 

“Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples,” Walker wrote in his 136-page opinion.

 

On April 6, Walker ended months of speculation by publicly disclosing “that he is gay and that he has been in a committed relationship for more than 10 years,” said a motion filed by Proposition 8 backers. In previous news reports, according to the motion, Walker refused comment on his sexual orientation.

 

The motion said Walker should have either recused himself from the case or disclosed his sexual orientation “so that the parties could consider and decide, before the case proceeded further, whether to request his recusal.”

 

Walker told reporters in April he didn’t think it was appropriate for any judge’s sexual orientation, ethnicity, national origin or gender to stop them from presiding over a case, according to a Reuters report.

 

“That’s a very slippery slope,” said Walker, who was appointed to the federal bench in 1989 by President George H.W. Bush.

 

The motion by Proposition 8 backers says that if Walker and his partner ever wanted — or thought they might want — to marry, he “plainly had an ‘interest that could be substantially affected by the outcome of the proceeding,’ ” it said, citing federal law regarding disqualification of judges.

 

“Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case,” the motion said.

 

Same-sex marriage advocates decried the move.

 

“Supporters of Proposition 8 are grasping at straws because they don’t like the outcome,” Michael Cole-Schwartz of the Human Rights Campaign said in April. “If their real intent was to ‘protect marriage,’ they should argue that a straight, married judge be disqualified since he would conceivably have an interest in protecting his own marriage. The argument is simply ridiculous on its face.”

 

The Proposition 8 backers emphasize that in the motion, they are not suggesting a gay or lesbian judge could not hear the case — only that no judge should try a case where they might have an interest in the outcome. “We deeply regret the necessity of this motion,” it says.

CNN)— A federal judge who ruled against a ban on same-sex marriage in California and later revealed that he is gay showed no evidence he was prejudiced in the case, according to a ruling Tuesday.A federal judge in San Francisco Tuesday upheld former colleague’s Judge Vaughn Walker’s ruling on California’s Proposition 8. Questions had been raised about Walker’s ability to impartially decide the controversial question of same-sex marriage.

U.S. District Court Judge James Ware backed the original ruling by Walker that the voter-approved ban on same-sex marriage in the state was unconstitutional.

The new order keeps the issue on track to an expected Supreme Court challenge, perhaps by next year.

Just before retiring from the federal bench this year, Walker revealed he is gay and in a committed relationship, raising ethical questions for some about whether he should been involved in the case.

“It is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings,” Ware ruled.

In August, Walker ruled that Proposition 8 violated the Constitution’s equal protection clause.

“Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples,” Walker wrote in his 136-page opinion.

On April 6, Walker ended months of speculation by publicly disclosing “that he is gay and that he has been in a committed relationship for more than 10 years,” said a motion filed by Proposition 8 backers. In previous news reports, according to the motion, Walker refused comment on his sexual orientation.

The motion said Walker should have either recused himself from the case or disclosed his sexual orientation “so that the parties could consider and decide, before the case proceeded further, whether to request his recusal.”

Walker told reporters in April he didn’t think it was appropriate for any judge’s sexual orientation, ethnicity, national origin or gender to stop them from presiding over a case, according to a Reuters report.

“That’s a very slippery slope,” said Walker, who was appointed to the federal bench in 1989 by President George H.W. Bush.

The motion by Proposition 8 backers says that if Walker and his partner ever wanted — or thought they might want — to marry, he “plainly had an ‘interest that could be substantially affected by the outcome of the proceeding,’ ” it said, citing federal law regarding disqualification of judges.

“Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case,” the motion said.

Same-sex marriage advocates decried the move.

“Supporters of Proposition 8 are grasping at straws because they don’t like the outcome,” Michael Cole-Schwartz of the Human Rights Campaign said in April. “If their real intent was to ‘protect marriage,’ they should argue that a straight, married judge be disqualified since he would conceivably have an interest in protecting his own marriage. The argument is simply ridiculous on its face.”

The Proposition 8 backers emphasize that in the motion, they are not suggesting a gay or lesbian judge could not hear the case — only that no judge should try a case where they might have an interest in the outcome. “We deeply regret the necessity of this motion,” it says.

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