Should a Gay Judge Have Appointed Himself to Hear the Case Against Propositi...

Should a Gay Judge Have Appointed Himself to Hear the Case Against Proposition 8?

via Big Lizards by Dafydd on 8/6/10

Patterico asks a cogent question in a recent post: "Should the Prop. 8 Decision Have Been Made by a Gay Judge?" Or should Judge Vaughn Walker have recused himself from hearing Perry v. Schwarzenegger, the lawsuit filed to overturn California's Proposition 8, an initiative constitutional amendment banning same-sex marriage (SSM)?

Patterico concludes thus:

Still, if you see laws against gay marriage as discriminatory in the same sense that Jim Crow laws were, it's tough to accept the premise that a gay judge could not ethically decide this case.... Would a black judge be required to recuse himself from hearing a challenge to Jim Crow laws? Somehow, the intuitive answer to that question is no, of course not. Why is this different?

This one is actually fairly easy to answer: By the time Jim Crow laws were being overturned in courts, America had already enacted numerous federal laws and constitutional amendments, an infrastructure of paradigmatic change, going all the way back to our Organic Documents, that collectively formed the basis for a national consensus that "all men are created equal."

Obviously not everybody agreed, or we wouldn't have needed to overturn such laws in court -- nor would we have needed to enact the 1964 Civil Rights Act. But a consensus does not require unanimity; and clearly, Americans were willing to accept in the abstract what they could not always practice in their own lives: That there is no significant difference in personhood between black and white.

Today, we absolutely accept the fact that gay men and lesbians are just as much "persons" as heterosexual men and women, and they have the same rights. Even those of us who oppose SSM accept that point without hesitation; you have to go to a repulsive, lunatic, little vants like the Irreverend Phred Phelps and his henchmen to find anyone disputing the basic humanity of gays.

But that's not the question, is it? We all agree that gays have the same rights as heterosexuals; the question is, what exactly are those rights anent marriage?

I believe that gays and straights both have the same marital rights -- to religiously marry anybody or any group of people they and their religion allow... but to legally marry only those people who meet certain qualifications, one of which is to be of the opposite gender. I have no objection to a gay man marrying a woman, gay or straight; just as I have no objection to a lesbian marrying a man, no matter his sexual preference.

It wouldn't even bother me if a gay man married a lesbian, then they had children... or even adopted. So long as the family has a male father and a female mother, I will grant it's as socially valid and as good for raising children as a marriage of two heterosexuals.

But I do not support a putative "right" to legally marry anybody one "loves", without exception or qualification. Marriage comes with a host of restrictions that bind everyone:

• You cannot marry a person without his or her consent.
• You cannot marry your sibling, your parent, or your close cousin.
• You cannot marry a child.
• You cannot marry multiple people at once (group marriage).
• You cannot marry someone who currently is already married (bigamy).
• And... you cannot marry a person of the same gender as you.

That last restriction applies equally to heterosexuals; consider two old biddies, best girlfriends, both widowed, and both completely straight, but who want to marry for the financial benefits. Sorry, ladies, you cannot. We forbid you to abuse the legal status of being married.

By contrast, I absolutely support the Supreme Court decision in Lawrence v. Texas, striking down laws against "sodomy," however defined. Why the difference? Because the right to associate (and yes, including sexually) is an issue of individual liberty. It also falls within the veil of privacy that, yes, I do believe restrains federal, state, and local government from intruding too deeply into the lives of free citizens. Simply put, a government that can control who you are allowed to sleep with or who you can live with is totalitarian.

But marriage is not a private affair; it's a public, communal celebration and societal endorsement of a relationship; it says, "This is a special relationship that we, in this state, believe is better than other types of relationships. Thus, to encourage this type of relationship, we will reward it above and beyond other relationships." Given that description, state citizens have the right to decide what particular types of relationships we will so celebrate and endorse.

We can decide how close a relationship must be in order to put that person off limits. We can decide how old a person must be to get married. If we so choose, we can decide to allow polyamorous marriage. And if we so choose, we can decide to allow SSM; but by the same token, if we choose -- which we have done -- we can likewise decide to disallow it. And until and unless we have the same legal infrastructure anent marital rights for gays as we had the 1940s-1960s anent civil rights for blacks, no damned court has the power to overturn the people's law and make its own law.

If it did have that power, then America would no longer be a constitutional republic... we would instead be a kritarchy, ruled by unelected, robèd lords with lifetime tenure.

So yes, it may well make a difference if the judge who decided the case is a gay activist. But that would be true whether or not he himself was homosexual; there are doubtless more heterosexual gay activists than homosexual gay activists. The only point in bringing up Judge Walker's sexual preference is that it's another brick in the wall, another piece of evidence that he might well be a gay activist... taken together with other pieces of evidence, including the thirty-eight years he has lived and practiced in ultra-liberal, ultra-gay-activist San Fransisco; his judicial record in toto (not just a couple of cherry-picked cases where he actually deigned to follow the law, instead of trying to rewrite it); and the fact that, as Chief Judge, he probably decided to appoint himself to hear this case.

And of course the vapid and tendentious opinion he wrote, which also smells strongly of judicial activism.

For that purpose, exploring whether Judge Walker is a gay activist, it's not unreasonable to bring up his own sexual preference; by itself, it's not dispositive -- but it's not irrelevant, either.