Tuesday, April 26, 2011

Should Judge Walker Have Presided Over the Prop. 8 Trial?

The original sponsors of California Proposition 8—the anti-gay marriage initiative enacted through a 2008 referendum—have moved a California district court to vacate a legal judgment that Prop. 8 is unconstitutional.  They allege that the presiding judge, Judge Vaughn Walker, had but didn't discharge a strict legal duty to recuse himself. He allegedly incurred this duty because he’s party to a committed same-sex relationship that has a more-than-speculative chance of becoming a civil marriage if same-sex marriages are legally recognized in California.

The motion has provoked howls of outrage from liberals. Here, for example, is Erwin Chemerinsky, Dean of the Cal-Irvine Law School and a highly respected legal scholar:
"‘This is an offensive personal attack on Vaughn Walker,’ Chemerinsky said. He likened the legal maneuver to an argument that black judges cannot decide race discrimination cases or female judges preside over cases involving sex bias.”
I’m an ardent supporter of the legal recognition of same-sex marriages and a longstanding admirer of Chemerinsky’s legal acumen. But I have to say that, as far as I can see, he’s not only missing the point, but missing it by a country mile.

The motion to vacate the Prop. 8 judgment doesn’t turn on any notion that being gay disables a judge from presiding fairly over a trial involving allegations of bias against gays. What matters, legally speaking, is the allegation that Judge Walker had an immediate, and undisclosed, interest in the outcome of the case over which he was presiding. Indeed, on the facts alleged, he could have had as much legal standing to bring the suit as the actual plaintiffs appearing before him.  It all depends on how close he and his prospective spouse would have been at the time of trial to tying the knot if they could.

Suppose person X brings a nuisance suit against his next-door neighbor, person Y, because the stench from the pigs Y is keeping on his property is disturbing X’s quiet enjoyment of his own property. That may or not be a meritorious lawsuit. But it would never occur to anyone that Judge Z, Y’s next-door neighbor on the other side who can’t help smelling the same odors, has any business presiding over the trial.  In that case, it would be legally mandatory for Judge Z to recuse himself from the action.

Assuming that the facts about Judge Walker alleged are true, I don’t see any way around the conclusion that his presiding over the Prop. 8 trial presented an analogous situation. Moreover, the legal problem is compounded by the fact that, owing to some controversial legal rulings of his own, Judge Walker presided over a bench trial in which he served as the finder of fact, and then based his ruling respecting what most people always thought of as purely legal questions on his own factual findings.

Unless I’m missing something--and I may well be because I haven't yet gotten hold of the pleadings--the moving parties have a shot at winning their motion to vacate.  But I'm pretty sure, in any case, that it isn't a legally frivolous motion--indeed, it looks to me like it would have been malpractice for the anti-same-sex lawyers not to urge their clients to make it.


Anonymous said...

I understand your argument about the Judge living next door to the pig sty. But you didn't mention how the situation is different from what Prof Chemerinsky likened it to: black judges in race discrimination cases or female judges presiding over gender discrimination cases. Is it because the judge in question would have to not just fit the gender/race profile, but also be in a position to claim possible discrimination because of it?

Ron Replogle said...


That's right. An African-American judge presiding over a discrimination case brought by an African-American plaintiff normally hasn't suffered the discrimination that the plaintiff alleges. According to Judge Walker's ruling, he's arguably a member of the class of people who were injured by the enactment of Prop. 8.

Anonymous said...

Got it. Thanks.

Jim Hlavac said...

There's no judge who could ever be "fair" on this issue. Neither fair to gays, nor fair to those opposed to our very existence. The new filing is by people who are quite clear that they will accept no outcome except the forced "cure" or "incarceration" of gay people. They want to go judge shopping for a judge who will rule in their favor -- unfairly, prejudged, in the can -- as merely a stepping stone on their true program. They are not seeking some "balance," or "fairness" whatsoever, regardless of their legal niceties at the moment. No judge who rules against them will ever be safe from attack for not recusing himself, for they will say he's working with the "homosexual lobby" somehow, and he will have "prejudged" the case. (See Iowa judges -- all straight, all being pilloried, impeached even.)

The groups paying for this pleading now are in fact quite clear that gay folks should be gone from the nation, and not being discussed in court at all. They seek not fairness, and it's disingenuous to argue for it now. They seek a cultural genocide of sorts, which is not fair at all.

And no one can claim to not having been "injured" by the outcome of Prop 8 or the judge's ruling -- win or lose. The people who pushed Prop 8 are insistent that gay "marriage" -- by any name -- and gay existence itself -- is a dire threat to the nation. Sounds like a personal interest by literally everyone in the outcome of the case to me. Whom could be "fair" when "civilization" is at stake? The very apocalyptic terms the pro-Prop 8 people use precludes all fairness whatsoever. And we're not talking about pig stink -- we're talking about people no matter where they are in California, and everywhere else, gay or straight. The Pro-Prop 8 people will never be satisfied, and they are clear about that. They are at work to repeal such measures in every place they've been passed. They've been doing it since Anita Bryant in the 1970s.

And the judge's personal life was fairly well known before the trial even started, for decades even. And in fact, he was at one point a fine "anti-gay" judge when Reagan and Bush I appointed him, and gay groups complained about him. Indeed, as a lawyer Walker helped strip the use of the word "Olympics" from the "Gay Games" years ago. Why is his love life an issue now? That's how fair he is, we can't use the word "Olympics."

Lawsuits on gay matters are never really decided merely on the "law" -- but are so laden with emotion and religious belief that nothing about them can ever be "fair." Every court opinion about us is filled with religious arguments and personal belief and screams of impending doom, not law, and our religious belief is simply dismissed out of hand. No, no case about gay folks existence is ever fair. Especially of all to us gay folks. And they're usually decided by straight people with a lifetime of being told how horrible we are. And no one says a peep.

Mean Voter said...

To Jim: I think you've made an eloquent case as to why issues of this nature should not be decided by judges. I believe issues like this are properly left to citizens and legislatures in the 50 states to decide. Some states will legalize gay marriage and some won't. But citizens can always vote with their feet as well as vote in the ballot box.

Jim Hlavac said...

To Mean Voter: if gay folks vote with our feet, and move to the few states that wouldn't outlaw us, than I'm sure that state would be expelled from the Union forthwith for having a gay majority. Maybe that would be better. Indeed, Vermont and New Hampshire have barely 2,000,000 voters betwixt, we could become a majority there in a year. And we could take over say, oh, Alabama and Mississippi, also, since they too have plenty of liebensraum and few voters. (I hate snow, so Mississippi it is for me!)

Perhaps Hawaii too. There's some 10,000,000 or more of us -- but no more than 20,000,000 gay folks. More than enough to take over a few states. Maybe even outlaw heterosexuality as "deviant" from the "majority" when we're done. So why don't we follow your advice, and take over a few states? And then what?

TX, KS and MN just passed "laws" keeping their anti-gay smooching (AKA Sodomy statutes) in place. Some 14 other states simply refuse to remove the pointless verbiage, for gratuitous nastiness. It's illegal still in Florida to serve alcohol to "known homosexuals." Laughable. Unconstitutional, unenforceable, unAmerican, and dare I say, not very Christian either, but hey, the "legislatures" kept the provisions by "majority" vote for the fun of it? Why? And you want me to hand over the issue to them? Or vote with my feet? Expelled like Medieval Jews were from virtually every nation in Europe? This is rational to you? Vote with my feet? Yikes.

No, it's time for heteros to deal with the reality of gay folks as people, like you deal with murderers whom can get married on death row or autistic boys who can marry the retarded. And as exactly as whom we say we are -- born this way, born gay. Let my people go, and figure out a way to include us, and stop this "tough noogies" crap.

In the blessings of Liberty for All -- not for 95% of you, and a theocracy for me.

We are taxpaying Americans, entitled to life, liberty and the pursuit of happiness as rugged, or not so rugged individuals. Don't tell me "tough noogies and move" -- accept reality. It's far more conservative.

Anonymous said...

The parties to the lawsuit would not have had to guess about the judges gender or race, would they? And there were enough rumors flying to make an investigation of the judge's sexual orientation an issue for the trial beforehand. Certainly the standard could have been addressed before the trial given the ability of homosexuals to "hide" amongst "normal" folk - soneone could have simply said, "we want a fair and impartial judge, so we need to make sure he is not a homosexual." No one did. Why? because no one at the time thought it made a difference. Had the judge been heterosexual, based on the claims of the Prop 8 proponents, they would have had a vested interest in denying gays the right to marry to preserve their own marriage. No one pusuing life, liberty and happiness in the US that is even remotely interested in a lifetime partner can be considered unaffected by the law. (If the claims are true - and Pro 8 people swear by them). They have a situation. Deny it affects straight marriage so they can get a straight judge, and lose the merit of their argument, or let the RANDOMLY selected judge rule, as it happened. Too funny, if it did not affect millions of well meaning and inoffensive gay people.

ted baldwin said...

i wrote the above, sorry, not familiar with authorship routine.

Ron Replogle said...

Ted: I see your point, but I don't think it makes a legal difference. Imagine a case in which an anti-gay-marriage plaintiff is trying to overturn a ballot initiative that legalizes same-sex marriage. No lawyer would ever even suspect that he'd suffered a legally cognizable injury or had standing to challenge the law just because he thought it would make him worse-off. (All new laws make some people better off and other people worse off than they were before.) So there's no way that a straight judge presiding over the Prop. 8 case could have had a conflict interest comparable to the one that the movants are alleging that Judge Walker had.