The Los Angeles Times editorial board argues against ProtectMarriage's filing on Walker.
For example, most people do not smoke marijuana for medicinal purposes. Let's say the people of California passed a constitutional amendment that reinforced a longstanding prohibition on smoking medicinal marijuana in state parks, and allowing that fines be imposed on those who do. A judge who has never used medicinal marijuana, but has used other medicines, does not have a conflict of interest in the case equal to a judge who regularly uses medicinal marijuana and enjoys hanging out in state parks. (And no, I haven't tried the stuff, medicinal or otherwise, so you can't blame it for my coming up with this analogy.)
The group's lawyers argue that because Walker has a longtime male partner, he was unfit to render a decision on Proposition 8.Or, that he should have at least made the disclosure.
If one day he should want to marry, the argument goes, he might benefit from his own decision, assuming it survives the scrutiny of higher courts.Is this not true?
This claim is absurd on many levels, especially when you remember that ProtectMarriage's case against same-sex marriage is that it threatens the institution of heterosexual marriage. In fact, the group says, that damage gives it the legal status to challenge the initiative, because any married heterosexual is allegedly harmed by same-sex unions. But if that's the case, then by the group's own logic, married heterosexual judges would also be forced to recuse themselves; the integrity of their own marriages could be damaged by the matter before them.At first glance, the editorial board seems to have a point. However, bride+goom marriage is the status quo and has been for all of human history. The vast majority of people will marry during their lives. An individual judge's marriage would not be immediately and directly impacted so much as the overall institution of marriage. So it is not equivalent to compare the harm a judge who is engaged in a common practice might suffer if there is a change in the status quo to the direct, financial benefit a judge engaged in a minority behavior could reap by intervening to strike down the status quo by overturning a direct amending of the state constitution by the people of that state.
For example, most people do not smoke marijuana for medicinal purposes. Let's say the people of California passed a constitutional amendment that reinforced a longstanding prohibition on smoking medicinal marijuana in state parks, and allowing that fines be imposed on those who do. A judge who has never used medicinal marijuana, but has used other medicines, does not have a conflict of interest in the case equal to a judge who regularly uses medicinal marijuana and enjoys hanging out in state parks. (And no, I haven't tried the stuff, medicinal or otherwise, so you can't blame it for my coming up with this analogy.)
An African American judge could never hear a race-discrimination case. And no female judge could decide a lawsuit on gender discrimination. Or a male one either.Again, this is a misstatement (as is a later part of the editorial). It isn't about Walker’s identity, it is about his behavior.
The guidelines for judicial recusal can be unclear at times, but generally the bar is a high one.Would the editorial board be comfortable with a judge with a position on the governing board of the First Nondenominational Church of Fresno ruling on a case that would have a direct impact on the finances of that church? Or a judge who owns a gun store ruling on a case about imposing fees on gun sales?
"In fact, the group says, that damage gives it the legal status to challenge the initiative, because any married heterosexual is allegedly harmed by same-sex unions."
ReplyDeleteThis is a complete misstatement of the arguments - but hey - it doesn't matter to the LA Times if they fudge the argument to express their point of view....
LA Times: ...any married heterosexual is allegedly harmed by same-sex unions.
ReplyDeleteSociety itself is hurt by this, which hurts every member. Proof positive that neutering marriage is a bad idea is the fact that the only argument for it is an appeal to identity politics. Identity politics is the refuge of the weak minded.
If one find's one's best (or only!) argument is an appeal to identity politics, one needs to reexamine one's position. Every atrocity throughout history, from slavery to the killing fields to the massacres in Rwanda have been justified by identity politics.
Euripides: This is a complete misstatement of the arguments.
A misstatement so complete it can only have been a dishonest one, not merely an incompetent one. The defense of marriage does not depend on any identity politics at all, only on the actual purpose of marriage. Six years after challenging neutered marriage advocates to come up with a purpose for neutered marriage they still can't.
LA Times: An African American judge could never hear a race-discrimination case.
ReplyDeleteA more apt analogy would be that a KKK Wizard could never hear a race-discrimination case. Our judicial system depends on the notion of an impartial judge. This is yet another principle of good governance that the LA Times and other advocates of neutering marriage are willing to throw under the bus in the pursuit of their goal.
If there were a sound argument for neutering marriage, an impartial judge would surely agree. That the LA Times is fighting tooth and nail to prevent this case from going before such a judge is telling indeed.
"That the LA Times is fighting tooth and nail to prevent this case from going before such a judge is telling indeed."
ReplyDeleteThis is key. The media are so steeped in the big lies of leftist dogma, that they will bend every rule or law to achieve their ends. It's an Alinskian dystopia - any means justify the ends.
The problem is not that Walker self-identied with the socio-political label; nontheless that identity is prominent in the legal arguments made by the SSM siide in his courtroom.
ReplyDeleteThe problem is that Walker has been in a same-sex sexual relationship; the problem is not that he and the other man might experience same-sex sexual attraction and/or same-sex sexual behavior although all of this is conflated under the arguments put forth by the SSM side in the case before the court
SSM arguments were presented in the openning written legal briefs filed at the outset ... and prior to the trial ... by the litigants in a formal and necessary step in launching the case. This was on the table so Walker cannot have been ignorant of the significance of a) gay identity, b) homosexual orientation and behavior. c) the type of relationship that features in the offerred reasoning of one side of the litigation.
Start by considering the possibility that a judge might openly demonstrate that he'd SSM if the law was changed. The conflict would be obvious and the judge would be obligated to, at minimum, put it on the table in full disclosure. The usual process for assessing the recusal issue would then be pursued and,one way or the other,concluded in the open.
Next consider a judge who has not made it obvious that he' utilize the very legal thing that was at dispute in the case before the court. The test is that of the reasonbe person ... would the judge's type of relationship prompt a reasonable person to question his impartiality in this particular contest between the litigants?
The answer must be yes. That would put the queation on the table for the usual recusal process to decide. The conclusion of that process is not fore ordained.
The litigants on either side might have opted to press for recusal. Either side might have waived that option. Both sides might have pressed for assignment of different judge.
But Walker hig his relationship from the official process. As an offficer of the law ... and partilarily as a judge ... Walker was bound by the duty that is codified and active in the legal system in which he operated with authority. An authority,it must noted,that is delegted to him on behalf of the governed. The reasonable person test is not something Walker unknowingly evaded in this case.
He knew what he was doing wrong.