At National Review,
Ed Whelan takes issue with
my criticism of his call to have the Prop 8 verdict set aside. He lumps me in with the folks at Media Matters:
Meanwhile, the only two defenses of Walker’s non-recusal that I’ve run across conveniently misrepresent my argument. Media Matters falsely contends that I am arguing that Walker “should be disqualified because of his sexual orientation” (I have never made that argument) and conflates that argument with my argument that Walker should have disqualified himself because he was in a long-term same-sex relationship. And Cup O’ Joel likewise wrongly claims that I am arguing that Walker’s ruling must be vacated “because Walker has recently come out of the closet and thus can’t be considered impartial.” The implications that the two bloggers claim would flow from my argument rest entirely on their confusion.
I'll gladly cop to occasional confusion, but not to "conveniently misrepresenting" Whelan's argument--at least, intentionally. I do try to argue in good faith. But wait, if I am confused, what exactly did I miss? Let's go back to Whelan's original column:
Two weeks ago, former federal district judge Vaughn Walker, who ruled last summer in Perry v. Schwarzenegger that California’s Proposition 8 is unconstitutional, publicly disclosed for the first time that he has been in a same-sex relationship for the past ten years. A straightforward application of the judicial ethics rules compels the conclusion that Walker should have recused himself from taking part in the Perry case. Further, under well-established Supreme Court precedent, the remedy of vacating Walker’s judgment is timely and necessary.
(snip)
In taking part in the Perry case, Judge Walker was deciding whether Proposition 8 would bar him and his same-sex partner from marrying. Whether Walker had any subjective interest in marrying his same-sex partner — a matter on which Walker hasn’t spoken — is immaterial under section 455(a). (If Walker did have such an interest, his recusal also would be required by other rules requiring that a judge disqualify himself when he knows that he has an “interest that could be substantially affected by the outcome of the proceeding.”) Walker’s own factual findings explain why a reasonable person would expect him to want to have the opportunity to marry his partner: A reasonable person would think that Walker would want to have the opportunity to take part with his partner in what “is widely regarded as the definitive expression of love and commitment in the United States.” A reasonable person would think that Walker would want to decrease the costs of his same-sex relationship, increase his wealth, and enjoy the physical and psychological benefits that marriage is thought to confer.
Because Walker was deciding how the law in the very jurisdiction in which he lived would directly govern his own individual rights on a matter that a reasonable person would think was very important to Walker personally, it is clear that Walker’s impartiality in Perry “might reasonably be questioned.”
Or, as Whelan put it in his update: "The mere fact that Walker is gay does not trigger the principle that I have set forth, as (without more) it is much more remote and speculative that he would have a strong personal interest in conferring on himself a right to marry a man."
And I can see the distinction between what I said and what Whelan meant:
Walker's verdict shouldn't be set aside because Walker is gay. Walker's verdict should be set aside because--to borrow a phrase--Walker lives the gay lifestyle. It's not the orientation that matters, but the fact that Walker
acts on it that creates the appearance that Walker has something to gain from overturning Prop 8. For most of us, that's a distinction with little, if any, difference, and as a practical matter it really does seem to suggest there is no gay judge in California capable of ruling with the appearance of impartiality. But it might be a big enough difference that Whelan's argument carries the day in a court of law. OK. He's the lawyer, not I.
However...
My argument didn't revolve entirely around the fact of Walker's homosexuality. Implicit in Whelan's argument, I think, is the
presumption that a straight judge could rule without the appearance of a conflict of interest. I wrote:
"Remember that one of the key arguments made by Prop 8 supporters was that gay marriages threaten straight marriages. ... Seems to me then, that any judge who is married or has been married or who might want to be married someday—be they gay or straight—thus finds him- or herself possibly compromised in this matter. Who is to say a straight judge wouldn't be acting to protect his or her marriage from the destabilizing influence of gay unions?
Under Whelan's argument, Prop 8 supporters get to have it both ways. They get to argue that straight marriage is threatened by gay marriage, but they also get to have a straight judge rule on the issue without fear of having to recuse his- or herself.
Convenient, as Whelan might say.
Weirdly, that might end up being while gay-marriage advocates could end up carrying the day—if not in court, and not at this time, then somewhere down the road. Think about it: A key argument against gay marriage is that straight marriages will be undermined.
But almost nobody takes the argument seriously enough—not even Prop 8 opponents—that they think straight judges face the automatic appearance of a conflict when ruling on the issue. If that's the case, doesn't that radically undermine that key argument against gay marriage?
I'm not a lawyer. I doubt the argument I've just made would carry much sway before the court; it's not strictly a legal argument. But the gay marriage debate isn't contained merely to the court, and what's going on in the court will have ramifications far outside the legal realm. Maybe I
am confused about the law, as Whelan suggests. I'm pretty clear on the implications, though: Whelan's argument consigns gays to second-class status, both in marriage and in the legal profession.
