Thursday, August 05, 2010

Prop. 8 -- Knocked Down. Judge Walker is Gay

Judge Vaughn Walker ruled California Proposition 8 to be unconstitutional yesterday with the following ruling:
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.
This was not a shock, nor does anyone have delusions that this case will settle the issue.

However, this author was surprised to learn is that Judge Walker is a homosexual. Is that an issue? Due to the fact he was hearing a case that was seeking to overturn voter-mandated law that discriminated against the judge personally, I think it probably should have been made a major issue, and will be made an issue in the appeal, by pro-Proposition 8 counsel. In order to help the judge seem more capable of impartiality despite his orientation, the SFGate article mentioned that the judge has his opponents in the gay community in California due to his representation of the US Olympic Committee against the SF Gay Olympics. The SFGate also quoted a gay California state senator as follows:
"It seems curious to me, that when the state Supreme Court heard a challenge to Prop. 8, the justices' sexual orientation was never discussed."
This argument on Walker's behalf suggests that impugning Judge Walker's impartiality due to his sexuality requires that the sexuality of any judge who hears a gay marriage case must likewise be impugned. The problem with his argument is with the target of the law. Someone who is heterosexual (and not involved with anti-gay marriage groups) can look at this issue far more impartially than (I believe) someone who is gay because the decision has no effect on such a heterosexual's personal life or the status of a group for which such a judge would be personally connected. Conversely, a homosexual (or even a Mormon) being the judge in a gay marriage case will impugn, either the judges actual judgment or the validity that others place in the impartiality of that judgment. Judge Walker should have recused himself and by not doing so he has provided ammunition for the appeal.

On the judicial front, this case is destined for a SCOTUS finale. Yesterday, before the expected judgment was released, fellow blogger Tom Grover discussed the problems that the current Supreme Court holds for gay marriage proponents on a Facebook feed. Despite the additions of two liberal female justices (after Kagen is sworn in) the court has one of the most conservative benches in recent history. With such a conservative bench there is a strong likelihood that state's rights may trump anti-discrimination clauses and produce a possibly insurmountable anti-gay marriage precedence. In this regard, the longer this process takes to get to the Supreme Court the better for gay marriage proponents and vice versa for the opposition.

As for the opinion of Green Jello, I believe that civil unions provide the best option for a fair compromise on this issue. Consenting adults are allowed to enter into any number of contractual arrangements. Marital contracts that the law recognizes should be no different, and I do not see how allowing two men or women to enter into such contracts effects my rights.

However, I can see a problem for religious organizations and unions between between gays being defined as marriages. If gay unions are defined as marriage and a religious group refuses to solemnize such contracts there would be possible exposure to anti-discrimination accusations and challenges to such groups tax-exempt status. Due to this issue, marriage may need to be best defined in the law as a wholly religious rite separate from the civil marital contract. This would provide equality in the law without placing undue pressure on religions to recognize and solemnize something that violates such religion's creeds.

I doubt any such compromises will ever be pursued. This case will be decided by the high court in the near future and all side will have to live with that decision. I hope that this debate will follow the course asked for in a recent LDS church statement:
We recognize that this decision represents only the opening of a vigorous debate in the courts over the rights of the people to define and protect this most fundamental institution—marriage.

“There is no doubt that today’s ruling will add to the marriage debate in this country and we urge people on all sides of this issue to act in a spirit of
mutual respect and civility toward those with a different opinion.”


Glenden said...


If Judge Walker's orientation were an issue, it was up to the defendants to raise the issue; they failed to do so in a timely manner. As I understand the law, they have lost the legal right to make it an issue now. If they had requested he recuse himself and he refused they'd have a valid legal issue on appeal but that's not what happened.

The logical extension of your argument on the issue of Judge Walker's orientation is that no gay person could validly be included in deciding on glbt issues because at some point almost any glbt person might want to get married. The same argument might lead us to conclude that no black person could hear a case involving civil rights, no woman a case involving reproductive rights, no one who is an immigrant (or child of immigrants) a case involving immigration law.

As to your penultimate point, for the most part in the US civil marriage is legally separate from religious marriage. Catholic doctrine does not permit divorce or remarriage but civil law does. Some churches refuse to perform interfaith ceremonies but the law allows interfaith marriage. In the same way, if a couple marries in a church and never signs the marriage certificate they aren't legally married (although common law grants spousal protections after a certain number of years). Churches are already protected from litigation for refusing to perform marriage ceremonies that violate their doctrine.

Phillip Bell, EA said...

Thanks for coming by Glenden. I really appreciate it.

I understand what your saying, and I admit that i'm not sure how I can reconcile the point. I agree with the judge's decision especially on a discriminatory front. However, I fear that his orientation may prove to be a factor in an Appeal's court decision overturning his ruling.

Regarding the probability of litigation against non-gay marriage accepting religious groups, I think you may be right but I do see risk for challenges against such religous group's 501(c)(3) status on anti-discriminatory rules in the tax code -- probably unsuccessful challenges, but I see the risk just the same. That's the main reason I would like to see marriage under the law vs religious marriage defined as separately as possible.

In the long run though, I'm afraid the makeup of SCOTUS may be the ultimate factor in deciding the issue once and for all. Unfortunately, I don't think the current court would vote in favor of civil rights.

Glenden said...

Phillip -

I've been trying to read as much of the commentary on the Perry decision as possible. Too much of it dull and repetitive.

As far the judges, we establish standards of professionalism and work from there. As I said before, I think the defense messed up badly - if Judge Walker's sexual orientation is relevant they should have brought a motion asking him to recuse himself; they didn't so I don't think they can bring it up on appeal.

I believe the legal risk to various 501c3s is relatively minimal. Not that some cases won't come up but for the most part if they take the public accommodation standpoint they'll be fine (a public accommodation can't discriminate). If they want to limit use of their facilities, then they need to have a consistent and readily available policy; for instance, a church may refuse to rent its facilities to non members - but they would have to absolutely follow that policy. IIRC there was a case in New Mexico where a photographer agreed to shoot a wedding then backed out when she found it was a lesbian wedding; she was sued for breach of contract and lost. I'd say so long as people know what they're getting into, and they honor their contracts, there won't be problems.

Glenden said...

I realized my comment was ambiguous - I think your take on the prop 8 decision is interesting and unique.