From the Ridiculous to the Sublime

Isn’t the Proposition 8 case fascinating? Don Barrett of Los Angeles wrote in a letter to the Los Angeles Times that a straight judge might actually value marriage, and that is supposedly a problem.

The assumption behind Proposition 8 was that [neutering] marriage would damage the institution of marriage. Wouldn't then a straight, married judge have some investment in the institution of marriage? In fact anyone is likely to have had some personal deliberations about marriage and thus would not be entirely unbiased about the value of the institution.

You see, not only are courts supposed to apply the law equally (which, to these folks, means placing more value on homosexual people and their feelings and desires than other people and their votes), the courts aren't supposed to value our foundational institutions. Judges are supposed to sit there and be "neutral" about the institution of marriage itself, as if valuing marriage and devaluing marriage were equally valid considerations for a court of law. What's next? A court should be neutral about perjury?

Ed Whalen over at NRO's Bench Memos has been following the case and has much to say about Ware's decision. Here's a taste.

Ware’s “legal conclusion” makes no sense. I’ve previously offered the hypothetical of a judge who desires to enter into a series of polygamous marriages and who is assigned a case in which plaintiffs are challenging the anti-polygamy laws of the state in which the judge lives. As I stated at the time, legal ethicist Stephen Gillers “acknowledges that the judge’s recusal would be required,” and “I find it difficult to imagine that there would be any legal ethicist anywhere who would maintain otherwise.” But Ware evidently would. Under his “legal conclusion,” the hypothetical case “could affect the general public based on the circumstances or characteristics of various members of that public”—the relevant characteristic of those various members being that they are aspiring polygamists—and the fact that the judge “happens to share” that characteristic “and will only be affected in a similar manner because the judge is a member of the public” (rather than a party to the case) “is not a basis for disqualifying the judge under Section 455(b)(4)."

And…

Ware’s second contention is also wrong. To be sure, recusal questions may sometimes be difficult, but there’s nothing “unworkable” about Prop 8 proponents’ standard. The key to workability is full and timely disclosure of relevant facts by the judge facing possible recusal. And if the judge has privacy or other interests in not making such disclosure, the simple alternative is for him to have the case re-assigned to another judge.

Go read it all, and follow the links to the other pieces.