Give Pema Levy high marks for intellectual honesty. In this thoughtful post, she channels liberal outrage at the suggestion that being gay impugns a judge’s impartiality, but without ignoring the legal complexities of the situation (my emphasis):
“Outrage over the motion quickly dominated conversation about the case yesterday, when many on the left argued that Prop. 8 supporters had lowered themselves to homophobic, personal attacks against the judge to save a desperate campaign. Certainly, the entire effort to ban same-sex marriage is based on irrational, anti-gay sentiment, and this latest twist is no exception. But the legal situation is more complex, because it raises a question the judiciary has rarely, if ever, faced: What happens when the judge in a civil-rights case is also part of the minority group whose rights are at stake?”Usually, the race, gender or sexual orientation of the judge in a civil rights case doesn’t generate even an appearance of partiality, much less its reality. Suppose an African-American plaintiff sues his employer alleging that he was denied a promotion that he would have gotten but for his race. An African-American judge’s presiding over the case doesn’t raise due process concerns because she didn’t suffer the alleged injury. Accordingly, unless there are other complicating circumstances (e.g., the judge is a personal friend of one of the litigants or an investor in the business being sued), the law recognizes no impediment to judicial impartiality.
That doesn’t mean that there aren’t a lot of people who believe in their gut that no African-American judge is likely to be impartial presiding over a lawsuit between African-American and white litigants. And you could undoubtedly find other people who look at the same case and see its mirror image: how, they’ll ask, can you believe that an African-American litigant will get impartial treatment from a white judge? It makes sense for the legal system to ignore both complaints on the grounds that the complainer’s judgment is clouded by racial stereotypes. If you like, you can call such complainers “racists” (or “sexists” or “homophobes” as the case may be).
As Levy recognizes, however, it isn’t easy to view the Prop. 8 case, or the motion to vacate the judgment Judge Walker entered, through this standard legal template. Proposition 8 wasn’t about whether California law should recognize same-sex relationships--it already did under the 2003 California Domestic Partners Rights and Responsibilities Act (“the domestic partnership act”). Nor was it about whether, by virtue of being party to a legally recognized domestic partnership, same-sex “spouses” should enjoy the same substantive rights as opposite-sex spouses in civil marriages--the domestic partnership act already raised a weighty legal presumption to that effect that Prop. 8 did nothing to counteract.
The Prop. 8 case was about what the State of California should call the bundle of rights/duties enjoyed by same-sex “spouses” under the domestic partnership act, not about what rights/duties should be in the bundle. The issue before Judge Walker was whether officially calling a materially identical bundle of rights/duties a “domestic partnership” when referring to same-sex couples, and a “civil marriage” when referring to opposite-sex couples, amounts to discrimination against gays and lesbians by the State of California.
Judge Walker held that it does: “Proposition 8,” he concluded, “does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.” The clear implication is that the enactment of Prop. 8 injured all gays and lesbians by subjecting them to state-sponsored contempt, including the presiding judge. Indeed, if you take the lenient view of legal standing popular in liberal circles, you may be obliged to conclude that the presiding judge could have brought the case himself. So there’s no getting around the fact that this judge’s holding threatens to run afoul of a vital principle of legal due process, viz., the no one can be a judge in one's own case.
You might therefore have thought that the motion to vacate Judge Walker’s judgment can either be homophobic or arguably legally meritorious, but it can’t be both. That’s an easy thing for a judicial conservative to say. But those words come a lot harder to the lips of judicial liberals because the Prop. 8 case stands at the intersection of two foundational imperatives of judicial liberalism.
On the one hand, generations of liberals have been determined to expand access to the courts so that litigants could secure judicial remedies respecting alleged rights that used to fall within the exclusive purview of the elected branches of government. That means watering down the criteria establishing what counts as a legally cognizable injury and, accordingly, expanding the class of people who can responsibly claim to have suffered the “injury in fact” it takes to confer legal standing on them to vindicate an alleged legal right in court.
That’s precisely what Judge Walker was doing. As far as I know, there was no legal precedent for the proposition that a state can discriminate against its citizens by calling the equal rights it confers on them by the wrong name. The 2003 domestic partnership act was designed by progressives as an ambitious legislative remedy for state-sponsored discrimination against gays and lesbians. Imagine how surprised they would have been to discover that, in the eyes of the law, they weren’t going to bat for gays and lesbians, but were insidiously discriminating against them.
The same generations of liberals, on the other hand, have devoted themselves to strengthening due process norms. When I say that, I don’t just mean the legal rights that have been recognized by the law as a matter of “substantive due process,” like the right to use contraceptives or the right to engage in consensual homosexual acts in private. Liberals are viscerally committed to strengthening the norms of "procedural due process" as well by, for example, insisting that criminal defendants be read their Miranda rights, or demanding that military tribunals trying alleged terrorists not admit hearsay against them into evidence.
The Prop. 8 case shows that two foundational commitments of judicial liberalism--expanding the subject-matter jurisdiction of and access to the courts, and strengthening due process guarantees--aren’t entirely consistent. Liberals will have to measure up to some cognitive dissonance and decide what's more important.