Monday, February 08, 2010

Should a Gay Judge Recuse Himself In Deciding the Constitutionality of Proposition 8?

A recent column in the San Fransisco Chronicle begins, "The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay." [Hat Tip: ATL]

As the column indicates, Prop. 8's proponents (smartly) have not objected to Judge Walker on the basis of his orientation. There's been no indication of any bias in this trial, and I don't think that a judge's impartiality can be questioned on the basis of his sexual orientation.

That said, 28 U.S.C. § 455 (b)(5) states that a judge should disqualify himself if anyone within a third degree relationship to him or his spouse "is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding." A decision that gay marriage restrictions violate the U.S. Constitution necessarily would have a substantial effect on the interests of gay people and those close to them. These interests would vary from the fundamental (e.g., the right to marry) to the mundane (e.g., taxation and inheritance rights). In fact, the case would affect whether a judge's same-sex partner falls within the designation of "spouse" under these very recusal rules.

I don't know (or have any interest in) anything about Judge Walker's private life, such as whether he has any minor children. But even if he is single and has no children, the legal rights that would accrue from any future relationship would be directly affected by this case.

Again, I don't think impartiality can be reasonably questioned on the basis of orientation. I'm just wondering if Judge Walker may be deciding a case in which he has an interest. (Of course, since Prop. 8 supporters have argued that gay marriage undermines the traditional institution of marriage, one could argue that all heterosexual judges should recuse themselves, too.)

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Blogger Sean said...

Not all homosexual people are in favor of pursuing legal recognition of gay marriage, so simply being a homosexual would not create a conflict I do not think. If Judge Walker had spent time and campaigned against Prop. 8 or donated to groups doing so I would think there could be a conflict, as there could be for a straight judge. But I think mere status as a homosexual would be insufficient; I would not expect female judge to recuse herself from hearing any case involving women's rights, nor do I imagine the law would require her to do so.

2/08/2010 7:46 AM  
Blogger Carbolic said...

That's a great point, Sean. It seems pretty clear that a female judge wouldn't be precluded from hearing a case involving abortion, even though the issue affects her individually as a member of a quasi-protected class.

Another analogy. Should a judge who is an adoptive parent recuse him/herself in a case that decides the parental rights of adopted children? It seems to me that the latter question should be yes, but I'm not sure how to differentiate between the two scenarios.

2/08/2010 8:18 AM  
Blogger Slam Master A said...

I was discussing this very question with a colleague a couple weeks ago. Judge Walker's orientation is fairly well known in the SF legal community. Like the Chronicle's article states, he neither hides it nor makes a big fuss about it.

I think that the argument that Judge Walker should recuse himself seems much stronger on its face than it does when thought out.

The strongest argument against recusal, to me, is that it is impossible to know whether Judge Walker actually has an interest in the outcome. Does he have a partner? Does he plan on getting married should Prop 8 be repealed? Did he get married during the window of opportunity? Does he even want to get married? There are any number of reasons why Judge Walker is not interested in the result.

The basis of recusal in this matter is so personal (as opposed to being based stock ownership, relationship to the parties, or something else objective), it is difficult and, frankly, uncomfortably intrusive to try to find the ultimate answer. In such a situation, it seems necessary to defer to the judge's decision.

2/08/2010 8:22 AM  
Blogger Toney said...

Great discussion. I bet Volokh picks this up.

2/08/2010 8:46 AM  
Blogger Laura said...

1) "Financial interest" is defined in the statute and has a much narrower meaning than "any conceivable financial impact."

“Financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party."

We can debate about the meaning of the commas, but I would read that to mean "financial interest" is "ownership of a legal or equitable interest ... in the affairs of a party." Walker has no financial interest in the affairs of any of the parties before him (or if he does, it's unrelated to him being gay).

2) Even if he does have a "financial interest," I suspect many, many other judges would as well when going out by three degrees. When the exception swallows the rule, it doesn't apply. That's why judges can hear cases concerning the pay rights of judges (because who else could hear them?).

2/08/2010 10:08 AM  
Anonymous Anonymous said...

Just my two cents, I think the arguments that a gay judge should disqualify himself are equally applicable to straight judges. The marriage equality cases implicate the rights of straight couples (theoretically) by endorsing heterosexual marriage and I think could be said to "substantially affect" everyone excluding monks and catholic priests. Arguments for recusal on those grounds don't reflect the pragmatic reality of difficult constitutional cases.

2/08/2010 10:24 AM  
Anonymous Anonymous said...

Thoughtful comments thus far.

Without addressing the obviously complex constitutional issues, I think the fact that a gay judge heard this case speaks to much of the irony underlying the Defendant's case. When Mildred and Richard Loving married in 1958, in contravention of Virginia's anti-miscegenation laws, there were zero African Americans on the Federal Court. By the time the case reached the Supreme Court in 1967, this had changed.

How ironic would it have been for the Supreme Court to tell Mrs. Loving that her dark skin made her less fit to wed, while acknowledging that those who shared this same characteristic made them no less able to dispense justice as a Federal Judge.

Similarly, isn't it awkward to argue that a very well respected judge and jurist Vaughn Walker, whose objectivity or skill on the bench have never been questioned because of his sexual orientation, would be told that that same attribute makes him inherently less fit to marry?

I apologize for not addressing the question in the post, but wanted to share this thought.

2/08/2010 11:32 AM  
Blogger Dan said...

I think Walker recusing himself simply because he is gay would be a slap in the face to gay people everywhere. Once you get a seat on the District Court, you are expected to be able to separate your personal beliefs from the facts and outcome of the case. If Judge Bybee, a Mormon, was hearing the case on appeal, would we say he should recuse himself? I'm guessing Mormons everywhere would be offended by the suggestion, and rightly so. In either case, recusal would suggest that people of that group cannot make rational legal decisions separate from their own beliefs of those of their communities.

I do think it's interesting that this has not come up before, however. Seems like something that conservative groups would make a lot of hay over. I imagine the lack of controversy is due to the fact that everyone knows this case is going Supreme, regardless of Walker's ruling.

2/08/2010 11:44 AM  
Blogger Dan said...


2/08/2010 11:44 AM  
Anonymous Anonymous said...

Should a human judge recuse himself in deciding a human rights case?

2/08/2010 2:20 PM  
Anonymous Anonymous said...

typical bollocks .... if you follow the line that simply because a judge happens to be gay he cannot carry out his duties then you could apply the same hysteria and level of ridiculousness to a straight male judge in an alleged rape case (i.e the judge is male and straight - SURELY he must favour the male in these cases!)

get the drift?

2/08/2010 3:30 PM  
Anonymous Anonymous said...

3:30 = logic fail

2/08/2010 3:37 PM  
Anonymous Anonymous said...

by the same token, maybe an englishman should practice a little more on his logical reasoning skills because they are written in english.

2/09/2010 5:11 AM  
Anonymous Anonymous said...

If the case was about a man's right to rape, 3:30 may have a point.

2/09/2010 9:51 AM  
Anonymous Anonymous said...

No. No 3:30 wouldn't.

2/09/2010 10:17 AM  
Anonymous Anonymous said...

It will, however, cast doubt on his opinion in the court of public opinion. No matter what decision he comes to, his opinion will be read, digested and regurtitated throughout the country. Should he rule against Prop 8 and in favor of plaintiffs, it gives those who disagree with his opinion the ability to attack him and instead of his logic.

2/09/2010 7:52 PM  
Anonymous Anonymous said...

like a minority would EVER suggest that [what the minority believes to be] basic civil liberties be denied to that minority.

of course he should recuse himself.

2/10/2010 12:40 PM  
Anonymous Anonymous said...

Whether or not he should recuse himself is certainly debatable.

However, 12:40, if your blanket statement was correct, then Larry Craig, Mark Foley, and Ed Schrock have voted against the Defense of Marriage Act. Or, to stretch the analogy a little bit, Clarence Thomas would favor affirmative action.

2/10/2010 2:51 PM  
Blogger Patrick said...

Judge Walker should have recused himself.

Of course it is ridiculous to think that he would render an impartial decision because he happens to be gay. But that's not the issue. The issue is that angry people might later believe that's what happened. They will believe - wrongly - that a gay activist judge with no respect for the law or for democracy is using the bench to advance his personal agenda. If the challenge has merit then other judges could strike down prop 8 just as easily, and with greater perceived legitimacy. Those perceptions count, even if they're irrational and indefensible; they're the cute little fiction that keeps our legal system working. For those reasons - and not possible prejudice - recusal is a no-brainer.

2/11/2010 9:03 AM  
Blogger Dan said...

Wow, Patrick, I don't think I have ever disagreed with you more. Why do those perceptions matter? Is the Judge's ruling somehow less enforceable because people think he's biased? Are the marriage licenses that would issue in the wake of a favorable decision somehow less valid?

People might bitch and moan (although I'm surprised that they haven't done much of this yet), but it will be pretty easy to defend the decisions by pointing to Walker's track record as a consistently center-right Judge along with his likely well-reasoned opinion.

A Judge should not recuse himself to please a mob. Suggesting that he should demeans our justice system.

2/11/2010 11:42 AM  
Blogger Matt said...

First, I don't think Walker is open, so he doesn't need to recuse himself. He's about as gay as Souter is, for all we all know for sure.

Second, his ruling doesn't matter. Justice Kennedy's does.

2/11/2010 11:45 AM  
Blogger Patrick said...

I agree with you in principle - a judge should not recuse himself to please a mob - but where, as here, the same result might be achieved without angering the mob, doesn't it seem reasonable to avoid the whole problem?

It's not that I think his decision will be unsound (it won't), and it's not that I'm worried people will attack him personally (they will). I'm worried that people opposed to gay marriage will latch onto Walker's ruling as an example of the "gay agenda" corrupting the courts, and all the rest of that bullshit. The courts should never bend their decisions the please a mob, but when the courts can issue the same opinion without inflaming the mob, doesn't it seem wise to do so?

2/11/2010 11:50 AM  
Blogger Dan said...

I see the practicality of your argument, but I think the principle is more important here. Recusal would send a message that a gay judge is not qualified to decide issues affecting gay people. That's a pretty shitty message to send, and Walker should only do it if it's offset by enormous benefit.

It's not. If he rules in favor of gay marriage (and, as Matt points out, if it's upheld), the mob would be powerless to do anything but whine. They're not going to overturn that with a 52% majority. That's the whole point.

Moreover, do you really think they're going to be any more vocal about Prop 8's majority being overturned by the courts just because the Judge was gay? They're gonna flip their shit either way.

2/11/2010 12:08 PM  
Blogger Matt said...

I don't think the anger of the mob should ever dictate what courts do. Isn't that the whole point of how our judiciary is structured?

2/11/2010 12:09 PM  
Blogger Patrick said...

Yes, they are going to flip shit either way. Judge Walker, I think, could have quietly recused when the complaint was filed and if so the non-issue of sexual bias in his decision would be avoided.

We all agree it would be a TERRIBLE idea to say he MUST recuse. We disagree as a matter of discretion. With an eye to furthering gay rights I feel a straight judge's opinion would carry considerable oomph, without raising the ridiculous suggestion that gay judges are biased.

2/11/2010 12:16 PM  
Blogger Dan said...

Well, you can keep your "oomph." I'll stick with praising Walker for keeping his sexuality the nonissue it has always been.

2/11/2010 1:51 PM  
Anonymous Anonymous said...

No, Dan, that's exactly Patrick's point. Walker may have made his sexuality into the issue by provoking conservatives. The conservatives are wrong, but Walker should have seen it coming and could have nipped it at the bud.

2/11/2010 2:05 PM  
Blogger Dan said...

2:05, that's the most word-that-Rahm-Emanuel-made it-so-we-can't-say-anymore thing I've ever heard.

He should "nip it in the bud" by doing exactly what they want before they even ask? Is that kind of like how we should nip terrorism in the bud by just nuking ourselves?

2/11/2010 4:45 PM  
Anonymous Anonymous said...

new study showing -- no surprise -- that the judge's identity can make a huge difference in certain kinds of cases.

2/12/2010 8:35 AM  

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