Every day, judges are called upon to resolve issues profoundly affecting the lives of our citizenry. Despite their diverse backgrounds and life experiences, men and women of good character are united in their commitment to decide each case fairly and impartially, consistent with their oaths of office.
No one would today argue that women judges cannot fairly preside over claims of sexual harassment, or that African-American judges should be disqualified from race discrimination cases. Yet word is now being circulated that the judge who presided over the federal trial regarding the constitutionality of Proposition 8 is gay and therefore should have recused himself from the case.
On August 4, 2010, United States District Court Chief Judge Vaughn R. Walker held in a 136-page opinion that "Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights" under the United States Constitution and struck down that law. Proposition 8 is the California ballot initiative that eliminated the right of same-sex couples to marry.
In the interest of full disclosure, I mention that in 2006, as Chief Judge of New York State's highest court, I dissented from the decision that the New York Constitution does not guarantee same-sex marriage rights. I write, however, not to address the merits of the constitutional issue but to challenge the attacks on Chief Judge Walker designed to influence the outcome of the California case as it enters into the appellate stage and feed the insidious fiction that judging is a political process in which judges decide cases based on personal agendas or political or religious beliefs.
Although Chief Judge Walker has been on the bench for more than twenty years, having been appointed by Republican President George H.W. Bush, his impartiality as a judge is now being questioned, after conclusion of the trial. (Notably, his initial nomination by President Reagan was stalled for two years in large part because of strong opposition from none other than the gay community.)
To be sure, all judges have personal qualities, among them sex, age, race, background, experience and religious beliefs. And thankfully, these characteristics among our Judiciary are more varied than ever before, reflecting the diversity of our society. But this does not mean that judges are less able to look beyond personal factors and decide cases based on the facts and the law. Above all, a judge's personal characteristics should not be the basis for an attack on judicial independence, a bedrock principle of our democracy.
Whatever the truth about Chief Judge Walker's sexual orientation, the contention that a gay judge should be disqualified from ruling on a matter affecting gay litigants is not only groundless but also enormously disrespectful to the judge.
Judges have an affirmative duty in every case to rigorously search their conscience to determine whether they believe they are able to rule fairly and impartially. By definition, Chief Judge Walker did precisely this and concluded that he was capable of deciding this case -- which was randomly assigned to him -- fairly and impartially.
To now presume because of his sexual orientation that he was mistaken, or worse, and based his ruling on personal, not legal, considerations, is a serious accusation, and an attack on the very core of the Judge's integrity. Significantly, the Proposition 8 supporters litigating before Judge Walker did not challenge his ability to decide the case fairly and did not seek his recusal.
If personal characteristics were the automatic disqualifier that Chief Judge Walker's critics suggest it is, where would it end? Should Justice Ruth Bader Ginsburg recuse herself from all sex discrimination cases? She is a woman who spent much of her early professional career advocating for women's rights. Should the Catholic Justices on the U.S. Supreme Court recuse themselves from death penalty and abortion cases because they belong to a church that has registered strong opposition on these issues?
Should Justice Thurgood Marshall have been barred from deciding cases involving civil rights? He was not only African-American but also the NAACP's Chief Legal Counsel and argued Brown v. Board of Education before the Supreme Court. How about the sexual orientation of close family members of a sitting judge -- is that also now to be automatically disqualifying in cases involving gay rights?
When Judge Leon Higginbotham was a young federal District Court judge presiding over an employment discrimination action, he wrote a seminal decision denying a litigant's recusal motion that was based on the judge's being an African-American and having been involved in the civil rights movement. Judge Higginbotham pointed out that until 1961, no judge had been confronted with the issues raised by the defendant's motion because no African-American had been appointed as a federal judge. He concluded: "If blacks could accept the fact of their manifest absence from the federal judicial process for almost two centuries, the plain truth is that white litigants are now going to have to accept the new day where the judiciary will not be entirely white and where some black judges will adjudicate cases involving race relations."
The increasing diversity of the federal and state bench should be viewed as a cause for celebration, not an occasion to attack the men and women who eschew personal financial gain for the job of daily striving to apply the law to the facts fairly and reach a just result. Chief Judge Walker, our Judiciary and our justice system deserve better.
Andrew F. March: Civil Unions for All! Why the Government Should Get Out of the 'Marriage' Business
The Gays just happen to be knocking on a door that the control nut religions need desperately to keep closed, so they can keep enlarging their profitable, untaxed organizations.
THE BASIC FEAR: Once everyone pretty much says that Gay Marriage turned out to be OK for society, others who question the churches will want their own chances to act
--- maybe they will decide that being different is how God made them, and abandon the conformist, smothering lifestyles for their own choices
--- maybe they will MARRY OUTSIDE THE FAITH (a huge scare)
IF JONNY MARRIES JOE, MAYBE MARIE WILL MARRY A METHODIST, OR A JEW,
OR BARACK OBAMA
He ruled on the case presented by each side --- all the evidence other than "we don't like it" was on the side of the prosecution. NO evidence was presented which reasonably proves harm to non-gays through gay marriage.
AND THE PEOPLE SHOULD NEVER VOTE ON THE RIGHTS OF OTHERS
NOR SHOULD RELIGIOUS FORCES FROM OUT OF STATE MEDDLE IN OUR LAWS
Beyond that, I will say that objections to a gay judge are astonishingly ignorant given that gays are routinely excluded from opportunity in this country, so it's nice to see an openly gay judge on the bench.
I also think it is unfair that most judges are straight white males. Although each one is not likely biased against women, gays, or non-whites, the collective group is certainly heavily weighted in favor of individuals who benefit from the exclusion of women, gays and non-whites in every position in our society. So I do think that overall our justice system is injust because it rewards straight white males not because they are smart, or hard working, or deserving, but simply because they are straight white males. In my count, 80% of the judges are straight white males, and that has been true for over 20 years. Women, non-whites, continue to be routinely excluded.
And there's a Constitutional problem with that: cruel and unusual punishment.
I wonder what other parts of the American Constitution conservatives wish they could vote away.
Conservatives are crucial at every stage in stopping Prop 8. The Constitution has a certain amount of bi-partisan support--except from the irrational mob, with their pitchforks.
That three judge panel has undermined the judicial system by blatantly discriminating, Not just that, they cowardly did so without giving a single solitary reason or argument supporting it. They delayed justice, thereby denying justice and making a mockery of their judicial oaths. That leaves any thikning observer with just a few conclusions to make about their motivations ... all of them ugly. I would like to think better.
Can you explain that one to us? I think anyone who has actually followed the trial agrees completely with your post, and could care less about Walkers alleged sexuality.
Addressing the granting of the stay would be a FAR more interesting essay. I look forward to it.
I agree with the argument of plaintiffs against the stay: the federal court has ruled that every day Prop 8 is in effect the constitutional right of Americans to equal treatment is denied. Their argument is that denying constitutional rights to Americans is unacceptable, even in the interim, and ought to offend every American who derives legal rights from the US Constitution.
In effect, the 9th Circuit has decided--without explanation--that the constitutional rights of Americans to equal treatment under the law carries less weight than Prop 8's defenders claim of harm--even when no harm has been shown and where the defenders don't even have clear standing (right) to appeal. In other words, by keeping the stay, thin air has superceded Constitutional rights.
But, truthfully, I agree with Judge Kaye. I just wish that President Obama had appointed SC justices that were not opposed to equal marriage rights. He had that opportunity and instead of taking it, he appointed justices who appear to mirror his own opposition and prejudice. It will be see as a huge missed opportunity when this history is written.
Bad losers always want to blame the judge. Nothing new here.
the way they bought this travesty of justice?
Maybe I'm misunderstanding, but this seems to be in error. The judge has a duty to do something. But the definition of that duty, and the definition of "Chief Judge", does not imply that the duty was precisely carried out. No definition can reveal the inner motives of someone. The author cannot know whether the judge fulfilled his duty, nor can the author know what conclusions the judge came to.
WHO HAS READ THE DECISION -- sees it makes perfect sense, no holes in it
I hope the Mormons who might read this will lead discussions in their local stakes on how their spending 30 million bucks, running most all of the Prop 8 campaign, and producing the VILE commercials that convinced parents that a no vote meant abandoning your childrens' moral education to the liberals and sodomites -- how did this serve God?
Not to mention that children could have been fed with the money and effort.
People tend to focus on the crazy Evangelicals, but the wily, stealthy Mormons in Utah, joined by the Knights of Columbus, perpetrated this abomination that made Gays feel unsafe in their own state of California