in the San Francisco Chronicle. Well, not exactly outed, since according to the article the judge, Vaughn Walker, has made no secret of his sexual orientation. In the very high-profile case in federal court in California challenging the constitutionality of Proposition 8, the gay marriage prohibition passed by California voters in 2008, Judge Walker has issued several rulings adverse to the defendants. Do you think this new information makes him inappropriately biased? Would the judge be less biased if he were a Roman Catholic heterosexual male with nine children? This issue reminds me of race discrimination cases in which White defendants sought to disqualify the judge because he was Black and identified with the civil rights movement, and was therefore allegedly incapable of being impartial. What do you think?
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What issue? It doesn't sound like anyone's complaining about it at all. What does Catholicism have to do with anything?
He was relating how one might feel the judge would be biased, since he is gay. Compared to how a Judge might be biased, if he was straight and catholic. The catholic church is against gay marriage, and therefore one could infer the judge would be aligned with his faith. Just as one could infer the judge might be biased being gay. Regardless, not ever heterosexual is against gay marriage, and not every homosexual is for gay marriage. As long as the judge has not identified as an "activist" on either side of the issue, I don't see either disqualifying them as fit to hear the case.
It appears that Larry has the correct approach. From the reports i have read, the judge made no secret of his sexual "orientation". If he previously disclosed this to counsel, there is no issue.
If he did not, and he rules in favor of the Plaintiffs, then he will have called into question his impartiality and demeaned his office. It may also provide the supporters of Proposition 8 with an issue on appeal.
In the meantime, perhaps the Professor can explain the relevance of Catholicism to his point.
I think he did. Why are people having a hard time understanding this. If the judge being gay, is consider a way to sway his ruling, then a judge being a straight catholic is a way to sway his ruling. Or, are straight catholics above being influenced by their faith, when making legal decisions? Yeah, rigghhhhtttt!
Catholics are very sensitive to criticism or even implied criticism.
The professor's question of bias could have been written many ways and still the point would have been the same. For example: A devout Evangelical Christian, heterosexual, married woman judge with 4 children…..or a Mormon, heterosexual, married male judge with no children. Is it the heterosexuality that might bias the judge, or the religion?
The point, if I'm not mistaken, is that a judge's sexual orientation is rarely, if ever, considered automatically to be a disqualifier in legal proceedings. A judge's maleness was never raised as a disqualifying factor all the years male judges have been ruling on issues that affect women.
But then, what would I know?
Those who support same-sex "marriage" usually take the position that its legalization should not be viewed as a threat to those with more traditional views. Under this view the Catholic or Mormon (or atheist) heterosexual judge should be able to render an impartial decision. Such a judge has no stake in the outcome.
Judge Walker, on the other hand, may well have a stake in the outcome of the trial over which he presides. Should he decide that Proposition 8 violates the constitutional rights of those who would like to marry someone of the same sex, then his impartiality could be, and should be, called into question. He would have granted to himself a right that he does not presently have.
In similar fashion, a Catholic judge's impartiality might well be questioned should he preside over a hearing the outcome of which might result in greater rights being accorded to Catholics.
The comments have generally been on the mark. It seemed to me plausible that a supporter of Proposition 8 (someone opposed to gay marriage) might at first glance feel that Judge Walker would be unfairly biased against their position. My main point was to raise the corollary question of whether a heterosexual judge would be similarly biased, in the other direction. I threw in, perhaps distractingly, the bit about nine children to fill out the picture of a very, very heterosexual judge. Catholicism is another identity category from which casual observers might similarly presume bias, even though clearly many individual Catholics–like individual straight and gay people–have personal opinions that differ from the stereotype.
@Quidpro: I think it's true that Judge Walker may have a stake as a gay man in the outcome of the trial. It's also true that a straight man or woman may have a stake in the outcome of the trial. Since the main issue is whether gay marriage poses some harm to the value or standing of traditional heterosexual marriage, it doesn't seem to me that anyone is personally entirely neutral on this.
But I don't see why the judge would have had to disclose his sexual orientation to anyone.
Viewed broadly, as a citizen any judge might benefit or not benefit from any number of cases he or she presides over. The possibilities are endless. They are entrusted to put that aside and there are appeals courts and such to serve as failsafe mechanisms. As far as I can tell, no one is doubting this fellow's ability to preside over the case due to his sexuality, so I'm not sure why there's cause to wonder whether Catholics should be able to preside over certain cases. I'm not Catholic, Reverend. It just seems a little bigoted. Would anyone doubt a Muslim's ability to preside over a divorce proceeding?
Quidpro, here comes the volly back. Those who are against gay marriage, usually say it weakens marriage, including their own. So, again, the catholic, married judge, with children, may also have something to gain.
RE:"But I don't see why the judge would have had to disclose his sexual orientation to anyone."
I don't think the judge HAD to disclose his sexual orientation, but as a professional he may have felt an obligation to do so because of the potential hoopla that would of resulted if he were even remotely perceived to be hiding something that may affect his judgment in this particular matter.
Quidpro made a good point by stating:
"He would have granted to himself a right that he does not presently have."
Why in the world would this judge possibly think that his potential personal interest in this matter would not be a valid reason to step aside and let a less controversial(?) judge make the decision? That would not be running and hiding from a tough case, but rather a professional decision based on reality in this current society.
The Judicial Code of Conduct provides a number of reasons a judge should withdraw from presiding over a case. Those include things like (1) being related to any of the litigants before him/her, (2) having previously represented one of the individuals before the Court, or (3) having previously worked in the same firm with the attorneys before the Court. Nothing is mentioned about recusing oneself because of his/her sexual orientation. Or gender. Or race. Or religion, and that is how it should be. If litigants had that much control over who presided over their case by raising a fuss, it would result in a problem similar to forum shopping. Continue to claim that the judge in your case is somehow biased and maybe you can get in front of that Judge you wanted to all along. In fact, Courts are loathe to impose stringent rules on judges as to when they should recuse themselves from a case. Somewhat on point would be the recent supreme court decision where the NRDC (I believe) asked Justice Scalia to recuse himself in a case brought against former VP Dick Cheney because he had gone hunting with Cheney prior to the case being heard before the Court. In typical Scalia fashion, he dismissed the NRDC's fears about any bias on his part and heard the case. Compare this with the Supreme Court justice in WV who was ordered to recuse himself for accepting millions from a strip mining organization in campaign contributions and then ruled in their favor later on.
I think his potential to personally gain something from this case that would not be a benefit to the vast majority of the general population would be reason enough to step aside. That, not 'bias', is the difference in this situation.
Dan, it would be a benefit to everyone…….if same-sex marriage is ruled legal, then any two men or women can get married. The law doesn't say the parties have to be homosexual. It would be a right afforded to all.
I'm not arguing the rationale for/against same sex marriage. In this particular case, this judge could personally gain from his decision where any number of other judges could, with probably equal skill, decide this issue without casting a shadow of perceived self-interest on the proceedings. This is a hot issue as is, why turn up the flame by adding unnecessary fuel to the fire???
This study seems relevant:
http://www.abajournal.com/weekly/article/race_gender_of_judges_make_enormous_differences_in_rulings_studies_find_aba
Professor Lee is correct, of course, that all of us are influeced by our backgrounds, beliefs and passions. Absolute objectivity (whatever that is) is a myth. Thus, on any sensitive social issue, the partiality of any jurist can be questioned. (Which is a strong argument in favor of keeping most of these decisions in the political sphere and out of the courts.)
That said, it has been my pleasant experience that most judges voluntarily disclose relationships the existence of which might raison questions of partiality regarding the case before the court. Disclosure has a disarming effect and rarely results in recusal or disquaification. Does anyone seriously dispute that this would have been the better course for Judge Walker in the Proposition 8 case?
Quidpro, I know we are getting off topic, but I disagree with leaving "these" issues up to politics and out of the courts. Where would our country be today, with out court ordered segregation? "These" cases are about majority rule, violating minority rights (or denial thereof).
Michael,
Although your question asks us to ponder an alternative history, I venture to state that our country would be approximately at the same point where it presently finds itself. One can make a strong argument that the post Civil War Amendments to the Constitution require the abolition of de jure segregation. Thus, even if the Brown decision had not been rendered, I doubt, indeed I deny, that we would have de jure segregated schools in the 21st century. In other words, since the Brown decision was tied to the Constitutional text, and since all elected federal officials take an oath of office to uphold the Constitution, we would have eventually come to the same result as Brown, even in its absence. Government imposed segregation is unconstitutional.
But what does that conclusion have to do with same-sex "marriage"? One must strain the constititional text to find any support for such a "right". The distinction, I think, is clear. The Constitution prohibits discrimination on the basis of race. No such prohibition exists with respect to same sex "marriage" specifically, or sexual "orientation" generally. Where the Constitution is silent, the people (i.e. the majority) are free to legislate. See, Amendments 9 and 10 to the Constitution.
Dan S.: In my view, "the shadow of perceived self-interest" is there regardless. The question of whether a gay judge is ruling to benefit his or her own right to marry is only as relevant as the question of whether a straight judge is ruling to protect his or her exclusive right to marry.
Quidpro: On the disclosure question, I was speaking primarily about legal requirements. I think I agree that one might well wisely choose to disclose regardless. In this instance, I'm not sure it's a relevant issue. I gather from the article (but do not know–readers are welcome to investigate and report) that Judge Walker was known in the community to be gay, although it was not previously discussed as an issue in the media coverage of the trial. I suspect the lawyers involved have known from the start. I didn't see any reactions that suggested that anyone was surprised.
Professor Lee:
My view is that there is a real difference in potential gains for a judge of either sexual orientation in this matter. A gay judge would win the financial advantages and legal perks of marriage if he/she chose to marry a person of the same sex after a ruling in favor of such unions. A straight judge would gain nothing tangible from any ruling and would therefore be a less relevant choice.
Dan S.:
Ah. I agree. I had been thinking more in terms of the judge's personal political and ideological commitments rather than tangible benefits. You are right, although I don't think that tangible benefits are primarily what those opposed to gay marriage seem to care about. My understanding is that support for civil unions, which would provide all of the tangible benefits but not the formal label of marriage, has risen even higher than support for gay marriage.
And on (slightly) further reflection, your point rests on a factual premise on which we might want more empirical evidence: is the 65- or 66-year-old Judge Walker really a candidate for imminent nuptials? I'm not suggesting that people of that age don't often happily marry, but I do think this is part of the calculation of whether he might have a personal stake. As a Californian, he might even already be legally married (during the 2008 Summer of Legal Gay Marriage in California), which would make this discussion moot.
And on even (somewhat) further reflection, I'm back to wondering about the premise. Is a Black judge's impartiality in ruling on a segregated facility to be questioned because he might then be able to join the club? Every opening of a previously exclusive privilege involves potential "tangible benefits" to the excluded and potential loss of symbolic or emotional benefits to the excluders. If members of excluded groups had to recuse themselves in all of these situations, that would ironically leave only members of privileged groups able to decide about whether to maintain the privilege.
Perhaps only bisexual judges ought to be allowed to rule on this case.