I agree that a gay judge should not rule on a gay marriage issue. He’s biased. He’s gay, and in a gay relationship and will therefore be biased in favor of gay rights.
Of course, non-gay judges should never be allowed to rule on issues of straight marriage or other private matters, legislatures should not be allowed to introduce legislation limiting or proscribing behavior related to gayosity or straightosity related to anyone like themselves, and voters should never, ever be allowed to vote on things that have anything to do with individual relationships, sexual behavior, sexuality, or anything else private where the voter her/himself could be somehow analogous to the individuals affected by the laws or amendments. And, the inverse must be true as well. A gay judge might be anti-straight, and therefore should never rule on straight-marriage issues, for instance.
The rules I just laid out in the previous paragraph would not apply, of course, to the rare and extreme cases where individuals’ private behaviors cost large amounts of government money or have very negative tangible side effects on others. Squeamishness, moral indignation, annoyance, or modest visual disruption of the landscape do not count as negative tangible side effects except in the possible case of visual disruption of the landscape in national parks.
Opponents of gay marriage are challenging notions of judicial neutrality in a San Francisco courtroom on Monday. They’re arguing that a federal judge who struck down California’s ban on same sex marriage last year was biased because he’s in a same-sex relationship*.
I fully support this initiative, and I hope it progresses and is recognized as case law. The consequences would be astounding. Women would no longer be able to legislate, enforce laws, or rule as judges on, say, abortion rights. Following the inverse principle, neither would men. Issues related to state laws regarding any kind of marriage or probate, if brought to a federal judge, could not be ruled on by judges who are in, or not in, those circumstances. Only judges who are (not were, but are) foster children could rule on laws about foster children. Or not. Only Judges who have Down’s Syndrome could rule on, say, execution of offenders with Downs. But they would not be allowed to do so. And so on.
Furthermore, the sexual orientation, karyotype, and other personal information of each and every judge will have to be determined and perhaps placed on the judge’s bench using some sort of symbol so everyone knows what the potential biases are if any issue related to that state of being comes up in any courtroom, ever, anywhere, from now on.
That is all, you are now free to return to reality.
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I think the logic can be simplified. On a gay rights issue, no one can rule as there are only biased opinions. Not gay, you are biased against, gay you are biased for. This can be extended to many more situations.
Decisions are reviewed on the merits of the decision
What about Eunuchs, though.
Douglas Adams solved the question of judicial bias by finding a being who lived on a planet so isolated and far removed from the rest of the universe he was unaware and unconcerned about anything but his small little cabin and his pet cat, as I remember it. All the really big and important issues were brought to him and a completely unbiased answer delivered.
Just as scientists are expected to publish their hypotheses, experimental method, data, and interpretations, judges publish opinions in which they lay out the facts of the case, the arguments presented, an analysis of case law and consequences, and the decision.
The accusation that Judge Vaughn Walker was biased in his decision is equivalent to stating that the decision does not logically follow the facts presented in court. None of the public complaints I’ve seen about the decision point out any fallacies of logic, formal or informal, in the published opinion. The complaint rests on the notion that Walker was inherently biased, but fails to point out how his decision does not follow from the evidence.
Indeed, Judge Walker bent over backwards to try to get the defense to present a better argument. He asked whether they had any evidence and the response was that no evidence is needed. The case for Proposition 8 just falls flat on its face.
The idea that Walker cannot decide fairly in a case about gay marriage is as prejudiced as a number of other conservative/Republican ideas lately. White people who voted for Obama were accused of racism, as were blacks. John McCain counted on sexism when he chose Sarah Palin as his vice presidential running mate. Don’t cha know, all the feminist women are bound to vote for a women running for the president of this great country of ours.
One should also point out to Walker’s accusers that he ruled against the Gay Olympics, forcing them to change the name to Gay Games. If he actually was biased in cases about gay people then I could say “I played hockey in the Gay Olympics” and people would know what I meant.
And oh, yes! Yesterday was the anniversary of Loving v. Virginia, which struck down laws that banned interracial marriage. I suppose the Prop 8 proponents think all the judges who ruled on that one should have recused themselves.
Timberwoof @ #3:
Well, technically that’s not relevant – recusal doesn’t really hinge on the presence of an actual bias, a judge is supposed to recuse themselves whenever not doing so could merely reasonably create the appearance of partiality. Of course it’s still nonsensical to apply that to any fundamental trait like race, gender or sexual orientation, and the complaint is sure to end up going nowhere – and the complainants are actually likely aware of that. But it’s bound to be a windfall for their fund-raising, since it plays so perfectly in their supporters’ “white, straight, male Christian as default” mindset.
And yet a straight married judge isn’t going to be thrown off for being potentially biased against gay marriage. What an interesting double standard.
Biases occur in every judge, best they try to avoid it. Disqualification based on demographic is dangerous and generalized. It presumes things to be true that may not be.
There is a reason why laws are given several appeals and chances for review. If a bias happens, the next one will see through it. But if the argument is sound, it stands.
There is so much about this guy’s sexuality and nothing about the argument. Why should this be overturned?
I guess I don’t understand why they didn’t bring this up before the initial trial. IANAL and don’t know the rules of procedure, but it seems to me that if they had an objection to his sexual preference then they should have made it at soon as Walker’s name appeared with the case on the docket. Or were they waiting to see how he ruled before deciding whether or not he was biased?
Mike, it was an open secret before the trial that Judge Walker is gay. What was not well-known was that he has a steady boyfriend. The Prop Hate folks are trying to get the ruling thrown out because he’s gay, but are trying desperately to have it not look like that.
It comes down to that they don’t have any facts on their side and are grasping at any straws to keep them afloat.
Straight Judges should NOT be allowed to rule on Straight Laws
Would a straight judge have been obligated to recuse himself on the basis of claims that, because “gay marriage undermines the sanctity of traditional marriage”, he would had a vested interest in seeing Prop 8 upheld?