No doubt. in the days and weeks to come, the talking heads will be edifying us on the complex nature of the DOMA ruling. In California, the voters mandated that “Marriage is between and Man and a Woman” period. Called “Proposition 8”, this vote was taken “to the people” and the “people” spoke. Historically an extremely liberal State ( I am a resident), it came as a surprise—-however, the voters of California had spoken.
Enter the “opposition” who took it to the 9th Court of Appeals, who overturned the ruling/proposition. However, prior to that ruling, it was heard at a lower federal level in California. An openly gay Judge, Judge Vaughan Walker, was assigned. Judge Walker’s decision was key to continue that climb to the Supreme Court. As Gerard V. Bradley, wrote back in August 2010
These high stakes have attracted a lot of attention to the California case of Perry v. Schwarzenegger. But not enough attention – in fact, almost none – has been paid to one very troubling aspect of the case.
This is the question of the judge’s bias due to his possible interest in which side wins the case.
Judge Vaughan Walker has surprised just about everyone with his unorthodox handling of the Prop. 8 trial.
Supporters describe him as iconoclastic and creative. Those less enamored have charged him with turning the proceedings into a sensationalized show-trial.
Both sets of observers could probably agree with the explanation offered by conservative commentator Ed Whelan who has observed that Walker has been determined from the outset “to use the case to advance the cause of same-sex marriage.”
I do not doubt that Judge Walker made up his mind about Prop 8 before the trial began.
But that is not the bias that has received too little attention.
Battalions of commentators have wondered about his bizarre handling of the case, and many have attributed it to Walker’s belief that it is unjust for the law to limit marriage to opposite-sex couples.
Nor is the neglected bias related to the fact that (as several newspapers have reported) the judge is openly gay.
Of course, Walker’s opinions about marriage and sexual preference could be related to his own homosexuality.
But even if they are, it does not follow that he would be incapable of being impartial and of rendering a judgment in accord with the law in the Prop. 8 case – any more than a happily married heterosexual would necessarily be.
In fact, all judges have beliefs and personal habits which intersect from time to time with the matters in dispute before them. We do not require judges to be blank slates without a personal life. Judges are not automatons.
All we ask and what we rightly expect is that judges put aside those things insofar as they might interfere with deciding a case fairly and in accord with the law.
But no one is immune to all conflicts of interest or of belief.
So our law rightly requires that public officials – judges included – stay out of matters in which they have a financial stake. It is not that everyone would be corrupted by the prospect of financial gain. Not at all.
But some people would be corrupted. And everyone can have greater confidence in the outcome of public deliberations when they know that at least one temptation towards corruption has been removed.
The neglected bias in the Prop. 8 trial has instead to do with the fact that – as reported in The Los Angeles Times last month – Judge Walker “attends bar functions with a companion, a physician.”
If (as The Times suggests) Judge Walker is in a stable same-sex relationship, then he might wish or even expect to wed should same-sex marriage become legally available in California.
This raises an important and serious question about his fitness to preside over the case. Yet it is a question that received almost no attention.
When a judge is obliged to withdraw from a case due to a conflicting interest we call it “recusal.
Following the ruling, it was kicked up to the 9th Court of Appeals, one of the most Liberal Court of Appeals known. The outcome:
The federal appeals court has declared California’s same-sex marriage ban to be unconstitutional, paving the way for a likely U.S. Supreme Court showdown on the voter-approved law. A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco ruled 2-1 Tuesday that Walker, a lower-court judge, interpreted the U.S. Constitution correctly in 2010 when he declared Proposition 8 to be a violation of the civil rights of gays and lesbians.
The Attorneys in the case, Boies and Walker always had the Supreme Court in mind. Which brings us to today. I think Ed Morrissey at HOTAIR sums it up best
This decision bothers me a lot more than the DOMA case. The voters in California amended the state constitution by referendum legally, to define a legitimate government policy regarding the recognition of marriage. The court is making the case that this is a matter for California to settle, not the federal courts, and there is a very good case to make there. However, the effect of this is to overturn an election whose legality was never in doubt just because some people didn’t like the outcome. That to me is a more dangerous outcome than a precedent-setting decision on standing.
“Upside” of today? The court has evaded the question of whether same-sex marriage is constitutionally-protected in all states. I’m sure that is the “next” move.
For great coverage of the overall unfolding of today’s ruling see https://hotair.com/archives/2013/06/26/open-thread-scotus-watch/
You can read the ruling here https://www.supremecourt.gov/opinions/12pdf/12-307_g2bh.pdf