? A Controversial Stance

[RexAll]

While I can't say that I am upset that California's Proposition 8 was declared unconstitutional, who can possibly believe that Judge Vaughn Walker wasn't prejudiced in the matter? He should have recused himself. Whether it can be proved on a legal basis or not, common sense ( while not always common or sense but which in this case is both ) says that there is no way he could have been impartial in judging this. And if by some incredible one in a million chance, he was able to achieve impartiality, most people both gay and straight will never believe it.

 

Rex

[Kevin Slater]

A main part of the petitioners' argument was that gay marriage would undermine traditional heterosexual marriages. By this logic, a straight judge would also be biased as the case would either impact her marriage or ability to marry in the future. Requesting a justice be tossed due to gender or race has rightfully met with a chilly reception from the courts and I suspect this argument will meet a similar fate.

 

Kevin Slater

[leigh.bess.toad]

So blacks can never judge discrimination lawsuits, women never judge gender bias suits, strict Catholics never judge abortion cases, and on and on. We would never have anyone be able to judge anything. The decision to reverse the decision based on Walker's sexual orientation was just handed down and it was a resounding win. From the Mercury News website:

 

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In his decision, Chief U.S. District Judge James Ware rejected the arguments of Proposition 8's sponsors, who maintained that former Chief Judge Vaughn Walker's ruling last year should be set aside because of his 10-year relationship with a male doctor. Walker struck down Proposition 8, concluding that it violated the rights of same-sex couples who want the equal right to marry.

 

"The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief," Ware wrote in his 21-page decision.

 

"On the contrary," he continued, "it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits."

[Rick Munroe]

So blacks can never judge discrimination lawsuits, women never judge gender bias suits, strict Catholics never judge abortion cases, and on and on. We would never have anyone be able to judge anything.

 

Exactly! And why should we assume that a straight judge would automatically be fair and unprejudiced?

[Decatur Guy]

Unless the judge was contributing money to a California organization that was formed to actively fight for same-sex marriage, there's no conflict of interest.

[rvwnsd]

So blacks can never judge discrimination lawsuits, women never judge gender bias suits, strict Catholics never judge abortion cases, and on and on..."

 

This is a very good point. A majority of the current Supreme Court justices are Roman Catholic. Given the Catholic Church's stance on same-sex marriage and on homosexuality in general, they would all be considered as being biased and have to recuse themselves from hearing a case involving same-sex marriage if this logic was applied.

[uwsman2]

The basis of the Proponents' argument is that everybody should be assumed to be biased in favor of what would benefit the groups of which they are a member. On that basis, anybody who invests in the stock market should be disqualified from judging securities and insider trader cases. Indeed, on that basis, most of the Supreme Court should be recusing itself most of the time.

 

Judge Ware started from the premise that judges are presumed to be fair unless shown otherwise, and that there is a heavy burden on those arguing for disqualification to show a very real, very imminent conflict that any reasonable person would believe precludes fairness.

[+ deej]

The basis of the Proponents' argument is that everybody should be assumed to be biased in favor of what would benefit the groups of which they are a member.

 

Said more simply, the Proponents' argument is that everybody is as biased as they are.

 

I haven't scanned news sources yet today, but when I do I'm willing to bet I see the phrase "activist judges" at least once.

[rvwnsd]

...I'm willing to bet I see the phrase "activist judges" at least once...

 

Interesting how the "activist" label is selectively applied to judges who make rulings supporting things like same-sex marriage. So far, I have not seen the judges who ruled in favor of Wisconsin's new collective bargaining law as being "activist."

[Rick Munroe]

So far, I have not seen the judges who ruled in favor of Wisconsin's new collective bargaining law as being "activist."

 

...or the ones who installed George Bush as President in 2000!

[uwsman2]

Actually, the law review literature is full of articles calling out the Supreme Court majority from 2000 in Bush v. Gore as activists! And there is now general consensus among legal scholars that the most activist member of the present court is probably Scalia.