The 9th Circuit Court of Appeal heard argument yesterday on whether the decision of Judge Vaughn Walker, who presided over the trial on the constitutionality of Proposition 8, ruling it unconstitutional, should be overturned. The argument, being advocated by so-called "pro-marriage" groups, and not by any governmental agency seeking to uphold Proposition 8, seems absurd. However, a decision in the matter has far-reaching implications for our judicial system, particularly in Family Law Courts where decisions are made by a judge and not a jury.
The Plaintiffs in the Proposition 8 case contend that Judge Walker should be recused for bias in that he could not have been impartial in the matter because he has been in a long-term relationship with another man and may have been seeking to overturn the law for his own personal benefit. The Plaintiffs contend that Judge Walker should have disclosed the fact that he was gay, and was in such a relationship, before being able to proceed with hearing the case. In other words, Judge Walker was, according to the Plaintiffs, obligated to discuss the details of his personal life before being able to hear the matter of whether Proposition 8 was constitutional. Since when we have ever required judges to disclose the details of the personal lives in such a manner? On what basis does one's sexual orientation affect his or her ability to determine the legality of matters?
Judges are routinely called upon to recuse themselves in proceedings where they have either a conflict of interest in terms of a relationship with one of the parties or counsel to the proceeding, or where they may have some financial interest in the matter, or a financial connection to one of the parties. These circumstances have not been alleged in the Proposition 8 matter. What has been alleged, is that Judge Walker was obligated to disclose both his sexual orientation, and the existence of his relationship with his male partner prior to hearing the case. As a result of this, there has been a fair amount of media and public attention given to the fact that Judge Walker is gay and that he is in a long-term relationship with another man.
The Plaintiffs seek to overturn the decision on the rather specious argument that if the law were overturned, Judge Walker would personally benefit from same by being able to marry his partner. There has been no allegation made that Judge Walker and his partner are engaged, have contemplated marriage, nor did they attempt to get married as the Plaintiffs in the underlying suit challenging the constitutionality of Proposition 8 did. The absurdity of the argument is exposed when one considers the fact that if Judge Walker was in this relationship for many years as Plaintiffs allege, including during the 18 month window when he and his partner could legally have married in California, they would have done so. As we know, not all people in relationships, whether gay or straight, choose to get married. Some people are simply not interested.
The outrageousness of this position is underscored by comparing it to any other situation where a judicial officer's personal and private circumstances could arguable have influenced his or her decision-making. If Judge Walker was required to disclose the nature of his personal life prior to the commencement of trial, does that mean that all judicial officers are required to do the same?
The area where this would seem to be the most relevant is in family law court. In those courts, decisions are made by a sole judge, not by a jury. Moreover, the types of decisions being made are personal in nature to the litigants involved -- just as the issue in the Proposition 8 case is. It is highly probable that at least half of the judges hearing these cases have had their own family law-related experiences. Those experiences and the state of the law the they are to apply, could arguably affect how they make a decision. However, as a matter of public policy it is simply wrong to subject those decisions to challenges that arise from the suspect argument that the judicial officer's personal situation may have affected the decision that he or she made. Are we going to require every family law judge that has been involved in a custody dispute to disclose that before hearing a case? Are we going to require those same judges to disclose that their own parents fought over custody when they were children? Are we going to require every family law judge called upon to determine the amount or duration of spousal support to disclose the fact that he or she is paying spousal support to a former spouse? What if that judge believes that the law should be changed to eliminate support entirely? Are we going to require these same judges, who have the ability to make new law by making decisions that may be reviewed by a court of appeal and upheld, to disclose their own personal situation, or be subjected to having their decisions overturned?
The judiciary is not a perfect institution. By its nature, it is established to allow our peers to make decisions on legal matters whether those decisions are made by a jury or a judge. The framers of the Constitution contemplated this at the time that the Constitution was drafted. We have to have enough confidence in our judges to believe that they will make decisions in keeping with the law. If we do not trust them to be able to do this notwithstanding their life situations or experiences, our judicial system will fail. Where will we find potential jurists who have had no life experience that could in any manner be arguably construed to affect a decision that they may make in a particular case?
The challenge being made to Judge Walker's ruling has additional ramifications as well. Judges are citizens who have agreed to employment by the government. They should not give up their rights of privacy as a condition of sitting on the bench. As judicial officers, they are already subjected to significant public scrutiny and, in most cases, a review process. That scrutiny should not be permitted to invade the most private aspects of their lives, their private interpersonal relationships.
The 9th Circuit Court of Appeals should deny the claim being made by so-called "marriage proponents." if for no other reason, than to give it merit opens the door to challenging our judicial system as a whole, and to subjecting members of our judiciary to an inappropriate invasion into their private lives.
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