Federal Judge Ware delivered a well-reasoned opinion*
yesterday about whether Judge Vaughn Walker should have provided full disclosure to the litigants in Perry v. Schwarzenegger
that he was a gay man living with another man in a sexually monogamous relationship for the previous eight years.
* One has to click through the lower part of the screen about high profile cases, and then click on docket document number 797 for the opinion.
Judge Ware recognized the difficulty in formulating or implementing a rule that would reasonably apply in such a broad circumstance. What is intriguing about the opinion is that early on, Judge Ware notes the anti-same sex marriage litigants were not arguing Judge Walker should be found to be biased because he is gay. What they were arguing is that by being a gay man in a monogamous sexual relationship, he should have at least disclosed that fact to the litigants. Now that is subtle--but it's still a pretty broad delineation of a sub-group when trying to apply the bias rules.
The practical legal answer to that jousting sort of argument against Judge Walker's conduct is this: The ruling from Judge Walker is right or wrong on the merits
of the arguments and application of law he cited in his opinion declaring the Defense of Marriage Act
(DOMA) unconstitutional. The language of his decision is what the court is going to consider, especially as it was a long and detailed decision that those who disagree with the conclusion may honestly and substantively analyze. And if Judge Walker's opinion appeals to Justice Anthony Kennedy, who is not gay, then Kennedy and at least other four not-gay justices of the US Supreme Court may well uphold Judge Walker's decision, making it the law of the land.
Thus, it is ultimately irrelevant whether Judge Walker is a gay man living in a sexually monogamous relationship with another man at the time he considered the case and rendered his opinion.
Still, one understands some of the consternation of those opposing same-sex marriage at the fact that Judge Walker was a gay guy who might personally benefit from his ruling. How do we understand this? By flipping the story: Imagine, for a moment, that Judge Walker was a practicing Mormon, but nobody knew that before he decided to uphold the DOMA. Considering how out front the Mormon Church was in promoting Proposition 8 in California
, the same State where Judge Walker presided as judge and where he rendered his decision, someone on the same-sex marriage side might have ended up screaming: "Of course he's biased! He's a member of a church that has made it a priority to uphold laws like the DOMA. He has a non-pecuniary interest in upholding the laws that say marriage is between a man and woman, not a man and man, and not a woman and a woman."
But again, I'd say the same to those folks in that scenario as Judge Ware said in his decision yesterday: Is a judge's mere membership in a sub-group enough to trigger full disclosure rules before the judge can consider a petition or case?
While the answer under law is fairly clear that his decision should not be overturned on the grounds of "bias," as defined under the law, I wish Judge Walker had used more personal discretion and disclosed his sexually monogamous gay relationship before hearing and deciding the case. I would like to think I would have been more sensitive than he was to those litigants who were trying to uphold the DOMA. For example, I think I would disclose my being Jewish to a criminal or even civil defendant who was a virulently anti-Semitic white supremacist. If he wanted no part of my presiding over the case, I would carefully want to consider whether to accommodate him--and would likely do so in any number of circumstances.
I had commented
on this issue around the time of Judge Walker's decision and am pleased to now find I anticipated Judge Ware's decision.
Still, I also believed then and believe now that Judge Walker is a rather elitist sort of fellow, which is a hallmark of so-called "moderate Republicans" (Yes, Walker was, at least until recently, a Republican by registration). I have also previously blogged on this sociological observation regarding elitist moderate Republicans in the context of the gay rights cases (see here
), where such moderate Republicans are more likely to engage in the type of judicial social engineering than a left or right wing populist-minded judge might have done.
Oh well, it's on to the US Supreme Court for Perry v. Schwarzenegger
, and let's see what happens there.
(Corrected title as I originally wrote "Not impartial"...Oops...)