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Prop 8 Proponents’ self-serving argument for reversal

Timothy Kincaid

May 24th, 2011

Let’s start with reality: those who are leading the effort to defend Proposition 8 believe that homosexuality should be illegal, that gay people should be denied adoption, immigration, employment and housing protection, and any other rights that can be conceived or considered. This is not accusation or characterization, it is a factual observation based on many years of hearing and reading what they had to say.

So it is not speculative to say that they do not believe that a gay person should serve as a judge over heterosexuals, at all. Ever. And when issues relating to anti-gay discrimination are being decided, it seems obvious to them that any and every gay judge should recuse themselves.

But you can’t come right out and say that gay judges are disqualified from serving as judges because they are gay. Even the most self-satisfied homophobe knows that appeals to bigotry are not well received by the legal community.

So the Proposition 8 Proponents have come up with a peculiar strategy: pretend that they are okay with gay judges in general, just not in this particular situation. Judge Walker could preside over some other theoretical case, they say.

We know of no reason to believe, for example, that Judge Walker would have any personal interest in the outcome of litigation over, say, the constitutionality of the military’s “Don’t Ask, Don’t Tell” policy.

And it isn’t that he’s gay that is the issue. No no no. It’s because he’s in a relationship, you see. Other gay people, those not in relationships, could judge the case.

Nor would there be any issue with a gay or lesbian judge hearing this case so long as a reasonable person, knowing all of the relevant facts and circumstances, would not have reason to believe that the judge has a personal interest in marrying if Plaintiffs prevailed. The particular facts and circumstances that give rise to such a reasonable concern in this case — Judge Walker’s ten-year same-sex relationship, his refusal to disclose both his relationship and whether he and his partner have any interest in marriage, his findings concerning the manifold benefits of marriage for “committed, long-term same-sex relationships,” and the extraordinary rulings and course of proceedings in this case — plainly do not necessarily exist for all or even most gay and lesbian citizens or judges.

So, you see, some other gay judge would have been just fine.

But let’s just look at the logic of their assertion: Judge Walker should have recused himself because, as he is in a ten year relationship, therefore the case could directly and substantially affect the judge’s own personal interests.

But Proposition 8 did not deny marriage rights to same-sex couples in ten year relationships. It denied marriage rights to all gay individuals who might ever seek to marry someone of the same sex. It didn’t matter if she were part of a long-standing couple or had just Ms. Right. All gay persons would be equally impacted by a reversal of Proposition 8. Every gay person, whether long coupled or long single, is equally barred from marrying on the day that they decide they wish to marry.

Except for a unique few. Let’s look again at their language:

Nor would there be any issue with a gay or lesbian judge hearing this case so long as a reasonable person, knowing all of the relevant facts and circumstances, would not have reason to believe that the judge has a personal interest in marrying if Plaintiffs prevailed.

The only acceptable gay judge, to the Prop 8 Proponents, is one who could convince them that he would never ever want to marry. That he has eliminated the idea of marriage from all of his possible futures. In other words, the only gay judge that the Proponents would accept would be one that announced, in advance, that he is personally opposed to same-sex marriage.

I wonder how we’d apply that criteria to other civil rights cases.

Comments

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Chris
May 24th, 2011 | LINK

Well, and if they’re arguing that same-sex marriage will somehow hurt straight marriages, wouldn’t a straight judge also be unacceptably biased?

Shofixti
May 24th, 2011 | LINK

The only good bias, Chris, is their bias.

The phrase that strikes me is:

…concerning the manifold benefits of marriage…

It’s quite Scrooge-like to be so obvious about keeping all the benefits to yourself at the expense of others.

Amicus
May 24th, 2011 | LINK

I haven’t read their brief.

Did they admit that Judge Walker has ‘something to gain’?

And what a contradiction that is, if they have, right?

Afterall, in their view (many of them), is that gays are just abusing themselves with each other and ‘making it official’, making the abuse of each other official, is somehow “gaining something” for the Judge.

JohnnyC
May 24th, 2011 | LINK

If Walker and his partner had an interest in marriage, wouldn’t they have taken advantage of it during period when it was legal in CA? Doesn’t the fact that they did not do so weigh heavily against plaintiffs arguments?

Dan
May 24th, 2011 | LINK

I’m no lawyer, but I agree their argument is so thin, I just can’t imagine the judge taking it seriously.

Even if he did, I’ve been thinking the same thing as JohnnyC ever since they filed this motion. And for that matter, do we know for certain that Walker and his partner are NOT married?

Jerry
May 24th, 2011 | LINK

JohnnyC, are you trying to provoke me into slapping you. Using logic on a religionist…sheesh.

Last week I watched the video of Olsen and Boies at the Cato Institute in DC. Mr. Olsen pointed out the the defenders of Prop H8 knew that Judge Walker is gay, it was brought up during pre-trial discussions. They didn’t want to look like bigots by demanding or even requesting that Walker recuse himself. It wasn’t until they lost the case and the rest of their efforts look bleak that they started grasping at this straw.

Now to return to JohnnyC’s logic. Judge Walker is retired from the bench now. He and his partner could move to Iowa, Massachusetts,Vermont, New Hampshire, Connecticut or the District of Columbia and marry. That’s not happening either.

Hyhybt
May 24th, 2011 | LINK

Well now, to be fair, the only judge of any orientation they would admit to being “unbiased” is one who took their side :)

Just like they do with polls. A majority of people cannot possibly *really* support marriage, so all the polls saying they do must, of course, be lying.

Lynn David
May 25th, 2011 | LINK

I’m with Johnny C. This:

The particular facts and circumstances that give rise to such a reasonable concern in this case — Judge Walker’s ten-year same-sex relationship, his refusal to disclose both his relationship and whether he and his partner have any interest in marriage, his findings concerning the manifold benefits of marriage for “committed, long-term same-sex relationships,” and the extraordinary rulings and course of proceedings in this case — plainly do not necessarily exist for all or even most gay and lesbian citizens or judges.

Proves Walker was exactly that judge they should put their ‘faith’ in. Else the H8 supporters must necessarily say Walker didn’t get married during the period marriage was available to him just in case he might have to rule upon it. And that’s about as far-fetched a conspiracy theory as the myriad of birthers have concerning Obama.

enough already
May 25th, 2011 | LINK

What is really telling here is the fact – and Bois is willing to swear to it in court – that the Christians knew Walker was gay and that he was in a long-term relationship going into this.
That they now say he didn’t reveal it to them AFTER they had the opportunity to bring the matter up as an objection pre-trial is lying.

Which, I thought, was forbidden to Christians?

Guess not.

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