An interesting discussion at Kashmir Hill with David Lat of Above the Law; the immediate occasion for it is the public revelation of Judge Vaughn Walker’s homosexuality, but of course the issue can arise in lots of other situations as well.
UPDATE: I originally said David Lat was “formerly of Above the Law,” but he is still the managing editor of the site.
ruuffles says:
Coincidentally, one of the dissenting judges in the original state challenge, Carol Corrigan, is a lesbian.
It would seem to be lose-lose. Walker strikes down prop 8, supporters of prop 8 complain about personal bias. Walker upholds prop 8, supports claim even “one of them” wouldn’t buy Olson/Boies arguments.
February 10, 2010, 12:49 pmthirdeblue says:
The current Supreme Court, being comprised entirely of homo sapiens to the exclusion of all others is unfit and unequivocally comprised to judge any law created by or affecting other homo sapiens. In this light, all prior rulings under this compromised Court has to be viewed with suspect.
February 10, 2010, 1:02 pmEvilDave says:
Journalists have no ethics.
February 10, 2010, 1:35 pmI thought that was settled.
Dave N. says:
Obviously, any judge’s life experiences will have some effect on how that judge conducts himself on the bench.
In the case before Judge Walker, my concern has not been his sexual preferences (which are irrelevant to me) but rather actions of his in this particular case that lead reasonable people to question his impartiality: his overturned discover order; his overturned order to televise the proceedings, and most significantly, ordering a full fledged trial for what seems to be an issue that should and could be resolved with summary judgment.
February 10, 2010, 1:43 pmJohn Herbison says:
Dave N, how could the Romer v. Evans issue possibly be resolved by summary judgment, short of a stipulation that hatred of gays in fact motivated passage of Proposition 8? Questions involving motive are particularly ill suited for summary judgment.
February 10, 2010, 2:39 pmDave N. says:
John Herbison,
I re-read Romer last night. Perhaps I overlooked it. Where in that decision does the Supreme Court hold that the motives of the initiative’s sponsors have any relevance? (I just pulled up the decision and the word “motive” is absent from the language of the opinion)
February 10, 2010, 2:43 pmzuch says:
Should a heterosexual judge also disclose orientation (or be outed) before presiding on a civil rights case?
Should a white judge be outed for being such if judging a black plaintiff’s (or black defendant’s) case? Would it be preferable to have a white judge on such a case so that they’re not sympathetic (or seen as sympathetic) to that party?
Cheers,
February 10, 2010, 2:44 pmbailey says:
I have read articles discussing the actions taken by the Judge in this case that raise issues concerning his partiality. The whole point of the case, of course, is ridiculous in and of itself as the plaintiffs are trying to nullify the votes of millions of citizens by calling the subjective feelings of those involved in the initiative into question. It’s relevant if he makes it relevant and he has.
February 10, 2010, 2:46 pmDave N. says:
By the way, for those without Westlaw, Romer is available here, on Cornell University’s website.
February 10, 2010, 2:48 pmtroll_dc2 says:
zuch, there is a problem here that your questions do not quite address. Although I am gay, I did not know that the judge was as well. The pattern of his rulings suggests a certain sympathy for the plaintiffs’ position. By itself, this would not be cause for concern, as a judge is required to make decisions on contested matters, and it is not inconceivable that an honest and dispassionate examination of the issues would lead a judge to the rulings that Judge Vaughn made.
But Judge Vaughn has a personal interest in the outcome that he did not disclose. I am not saying that a gay judge cannot fairly adjudicate a gay-rights issue. I am suggesting that THIS gay judge could be viewed as having a separate agenda that the parties, especially the defendants, did not know about and could not defend against. I think that he should step down from the case. The reason is the loss of public confidence that any decision that he renders would be based on an honest appraisal of the law and the facts. In the long run, the controversy over his alleged bias is not worth stoking, especially as the matter could go to the Supreme Court anyway.
February 10, 2010, 2:54 pmJohn Herbison says:
“Where in [Romer] does the Supreme Court hold that the motive of the initiative’s sponsors have any relevance?”
517 U.S. 620, 634 (1995), quoting Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 462 (1988).
February 10, 2010, 2:56 pmJohn Herbison says:
Is there any indication or suggestion that Judge Walker has a boyfriend waiting in the wings, whom he will marry if Prop 8 is held invalid?
February 10, 2010, 2:58 pmAnderson says:
I am suggesting that THIS gay judge could be viewed as having a separate agenda
Whereas a married, heterosexual judge “could NOT be viewed as having a separate agenda”?
Horsepuckey.
It’s also like saying a Southern Baptist judge would be somehow ineligible to rule on such a case.
February 10, 2010, 3:02 pmOuting? says:
How was Chief Judge Walker “outed”? It was no secret he is gay, just like it’s no secret that EV is straight. I would be pretty shocked to learn that the lawyers in this case didn’t know the judge is gay. I don’t even know why it’s being called a “secret.”
And to answer Dave N’s point, as someone else pointed out, the issue of what motivated a law is relevant under Romer. Perhaps you think the judge has taken too broad a view of Romer. But it’s a bench trial and judges often take in too much evidence and then decide later what’s relevant. That is what Walker said he’ll do in this case.
February 10, 2010, 3:02 pmJohn Herbison says:
I would attribute some significance to the fact that the Defendant-Intervenors, who are represented by able counsel (including a former Solicitor General of the United States) did not seek Judge Walker’s recusal. It is late in the game for anyone to kvetch about what has been characterized as an “open secret”.
February 10, 2010, 3:07 pmtroll_dc2 says:
Apparently the news that Walker is gay has come out only in the last week or so. It may have been an “open secret” to those who knew, but I doubt whether the defendants, even if they knew or had suspicions about him before there was any public acknowledgment, were in a position to move to recuse him.
He does not have to have a boyfriend in the wings to be biased. All he needs is a desire to reach a particular result that does not contradict who he is.
This is not like being black (as Judge Motley once discussed in rejecting a recusal motion in a case against Sullivan & Cromwell) or Southern Baptist, unless there is some indication of untoward sympathy for the Southern Baptist position. Here we have the two extraordinary reversals by the Supreme Court on procedural matters, which arguably suggests that he will not rule against the plaintiffs’ position for quasi-ideologial reasons relating to his sexuality. He needs to withdraw from the case sua sponte.
February 10, 2010, 3:37 pmRPT says:
Dave N:
Haven’t the improper decisions you cite already been reversed? If the complaint is just that he allowed a trial at all, and did not grant the MSJ in a case where intent is involved, that will not go very far without a determination of actual reversible error.
February 10, 2010, 3:40 pmMr L says:
It’s also like saying a Southern Baptist judge would be somehow ineligible to rule on such a case.
Some people do make such arguments. Remember the confirmation hearings for John Roberts? And he was merely Catholic.
February 10, 2010, 4:12 pmS says:
two extraordinary reversals by the Supreme Court on procedural matters
Aside from the reversal of the 9th Cir on television by a close vote, what is the other supreme court ruling? Cite?
February 10, 2010, 4:14 pmDave N. says:
RPT,
The fact that he made pre-trial rulings that required extraordinary intervention by the Court of Appeals in one instance and the Supreme Court in another rightfully can cause reasonable people to wonder at the Judge’s motivation for ruling as he did.
John Herbison,
I read the quote you provided as addressing the inference behind certain laws, not the motives of the initiative’s sponsors.
By way of analogy, there is a line of cases (I do not have time to find and cite them now) that when addressing legislation, the intent or thought process behind the bill’s author is irrelevant in interpreting the statute because other legislators might have voted for the legislation for totally unrelated reasons.
With initiatives, it is more than that. Each voter may have a different motive and literally millions of people may have voted the way they did without a thought as to why the initiative’s sponsors did what they did.
February 10, 2010, 4:21 pmtroll_dc2 says:
S. There was one Supreme Court reversal. The other reversal was by the Ninth Circuit. Sorry about that.
February 10, 2010, 4:26 pmegd says:
Are you suggesting that all journalists are ethically deficient, or rather that the field of journalism doesn’t have ethical rules (in that standards are irrelevant without a means of enforcing those rules)?
I can see it going either way, really.
February 10, 2010, 4:32 pmJohn Herbison says:
Dave, I am familiar with the line of cases that you cite. Some of them deal with restrictive zoning for adult entertainment outlets, such as City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). The Proposition 8 lawsuit is much closer to Romer v. Evans.
What is your understanding of the legal and factual basis for the Supreme Court in Romer invalidating the amendment to the Colorado Constitution? I have long understood that Justice Kennedy ruled that animus toward a particular class of persons–such as gays–is not a legitimate governmental objective, and the amendment accordingly was without a rational basis.
February 10, 2010, 4:42 pmShelbyC says:
If a significant number of folks think a particular piece of information can affect the judge’s ruling, and the journalist (or the journalist’s organization) think the information should be published, then they should publish it.
February 10, 2010, 4:44 pmSteve says:
If a straight judge had been reversed on a couple pre-trial rulings in favor of the Prop 8 supporters, anyone would be laughed out of the room if they suggested the judge should recuse himself because the public might perceive he’s only ruling that way because he’s straight.
We saw the same dynamic at work in the Sotomayor nomination. We see it all the time where members of minority groups are involved. Minorities need to bend over backwards to prove they’re not biased towards members of their group, whereas white males are the default and therefore presumptively without bias of any kind.
If a white defendant loses a case to a black plaintiff in front of a black judge, the grumbling that the judge was in the tank for the other side is inevitable. If the same defendant wins the same case in front of a white judge, the thought that they might have caught a break because of the judge’s race never even crosses their mind.
February 10, 2010, 4:48 pmRPT says:
Dave:
I understand that the USSC is watching the case closely, and that the reversed pretrial orders are unusual. My question is how cam you make the trial court’s motivation/sympathy/predisposition, et al, for one side or the other unless there is actual reversible error. I seen plenty of trials with biased judges that were fair because the bias didn’t actually affect the outcome.
The other question is what else could have been done to avoid the current situation. Th litigants have the obligation to object to the randomly selected trial judge at the earliest opportunity. Can the defendants assert that if they had known, or been certain, or merely suspected, that the judge was gay before the trial that he should have been disqualified? That would seem to have been a gross tactical and public relations error from which Boies et al would have argued “look how prejudiced the pro 8 people really are; they even hate gay judges!”
February 10, 2010, 4:48 pmShelbyC says:
Hypothetically, what if he were gay and engaged?
February 10, 2010, 4:58 pmzuch says:
If you take the defendants’ position that gay marriage destroys heterosexual marriage, then a heterosexual judge would have just as much a “personal interest”…..
Cheers,
February 10, 2010, 5:14 pmDave N. says:
John Herbison,
It seems to me that the motive behind an intiative is irrelevant. Let’s assume, for the sake of argument, that the sponsors of Proposition 8 had only the truest and noblest of motives.
Does that change the analysis as to whether Proposition 8 is constitutional or not?
Let’s do the reverse now. Assume, for the sake of argument, that the motives are the most vile imagineable.
Does that change the analysis as to whether Proposition 8 is constitutional or not?
February 10, 2010, 5:18 pmJournalistic Ethics and Outing Judges | Liberal Whoppers says:
[...] Journalistic Ethics and Outing Judges [...]
February 10, 2010, 5:20 pmJohn Herbison says:
Dave, my understanding of Romer v. Evans is that mere animus toward a disfavored group is an insufficient basis for class-based legislation under rational basis equal protection analysis. That is one of several issues present in Perry v. Schwarzenegger, so it does make a difference to that extent. Again, what is your understanding of the legal and factual underpinnings of the result that the Supreme Court reached in Romer?
February 10, 2010, 5:29 pmtroll_dc2 says:
But I don’t. What have I ever said that would allow you to make that suggestion?
Judge Walker was not open about his sexuality, unlike Judge Batts (SDNY). He is handling one of the highest-profile gay-rights cases ever to have been filed. Potentially, he could benefit directly from his own ruling (assuming that it survives appellate review). (I am assuming that he will rule for the plaintiffs notwithstanding the Supreme Court’s ruling in 1970 rejecting the concept.)
Perhaps he is the fairest-minded judge in the world. Nevertheless, an outsider who knows nothing about him (that is, 99 percent of the population) would wonder, on being told that he is gay, would be likely to wonder whether his orientation led to the outcome. At the least, there would be an attitude of cynicism that would put the judiciary into disrepute. There would not be the appearance of justice. He should have taken himself off of the case.
In your response, kindly avoid your snark.
February 10, 2010, 5:32 pmDave N. says:
John Herbison,
I will stipulate that at least one California voter voted in favor of Proposition 8 based purely on animus against homosexuals. Heck, I will stipulate that at least one California voter voted for Proposition 8 by mistake, meaning to vote “no” and instead voting “yes.” But as I said above, the language you cite seems to go toward an inference that may be raised about a particular law or initiative, not about the motivation of the initiative’s authors.
It seems to me that once the defendants were allowed to intervene (when Attorney General Brown refused to defend Proposition 8), then they could (as proxies for the California Attorney General) provide some rationale for why Prop. 8 would be Constitutional, even if Romer is controlling authority. That does not, however, have any relevance to the actual motives of the initiative’s authors.
February 10, 2010, 5:38 pmDevan says:
RPT, addressing your second paragraph:
It’s hard to tell what could have been done here. Can you imagine Boies objecting to the selection of the judge? The best solution would have been for Walker to recuse himself, but even that has huge problems. Something should have been done, though: it’s a huge strategic (not tactical) error to let it turn out this way. At this point, there’s no way for the pro-gay-marriage side to win in the court of public opinion.
What really interest me are the parallels between this case and In re Marriage Cases. A major theme of the Yes on 8 campaign was, “5 activist judges overturned the will of the people of California.” I think that this perception is what drove people who had said, just months before, that they would oppose a constitutional amendment, to vote the way they did.
If Walker rules for the plaintiffs, and the SC affirmed (unlikely), think of what it would do to the drive for a US Constitutional amendment!
Now, what really surprises me is that, knowing all of this, the SF Chronicle (normally very gay-friendly) is the one to break the news. Are they clueless? Is something else going on here?
February 10, 2010, 5:49 pmJohn Moore says:
Thoughts…
A. the idea that the motivations of the proponents is relevant to the validity of the Proposition is obviously wrong. This leads one to question why the judge allowed it in, and the best explanation was he intended harm those people. The same argument applies to televising the trial. This is a pattern of abuse of judicial authority, through causing intentional harm to citizens who exercised a very sacred right, and should result in his impeachment.
B. the assertion that a heterosexual judge has the same level of interest in such a proposition is fallacious. For the homosexual judge, his personal life may be radically altered by the outcome. For the heterosexual judge, there is no rational way to assert this – he may disagree; he may feel it is wrong, but there simply is no strong personal interest based purely on his sexuality. Hence the attempt to create a mirror situation is fallacious.
C. In spite of B, there is no reason to believe that a homosexual judge could not fairly preside over such a case. The problem is this particular judge.
D. The “outing” of this guy may serve to clarify the above issues (although I’m not in favor of outing people). Beyond that, as others have said, journalists have no ethics.
February 10, 2010, 5:50 pmE says:
I think you mean *by* Kashmir Hill – that’s the young lady’s name.
February 10, 2010, 5:58 pmepluribus says:
If a judge has a “personal interest” in a case simply because he is homosexual, wouldn’t a heterosexual judge also have an interest in the case simply because she is heterosexual? All judges have a sexual orientation of one kind or another. Would you demand a judge with no sexual orientation at all? Would you fault a black judge for presiding over a case involving racial discrimination against blacks? Can such a case only be decided by white judges?
February 10, 2010, 6:04 pmSteve says:
Should a female judge of childbearing age recuse herself from hearing any abortion-rights case? Is there a difference between this and the situation at hand?
February 10, 2010, 6:14 pmrollerderby says:
1) His sexual orientation is certainly newsworthy. Of course, I’d say the same if he were a straight judge married to a woman with 5 kids. It’s not something that requires recusal- if a gay person can’t hear the case, why could a straight person? – but, so long as “newsworthy” means “something a reasonably responsible person following a controversial story would find interesting,” that standard is met.
2) The very fact that this discussion makes the plaintiffs and their supporters uncomfortable, only further underscores the newsworthiness.
3) His orientation is more newsworthy, because of his controversial reversed rulings- they give rise to an inference that he’s prone to lower his standards for granting the requests of one side, the side which he happens to favor.
4) I don’t have a problem with him deciding the case at trial, rather than on motions. Seems to me one of the biggest problems in the legal system is that we don’t have ENOUGH facts for the big decisions the courts make.
The parties have the financing and interest to go to trial. Let them make their record.
February 10, 2010, 6:14 pmepluribus says:
I don’t live in California, but I understand that one of the arguments against same sex marriage is that it would destroy or drastically damage the institution of heterosexual marriage. You say that recognizing same sex marriage would “radically” alter the personal life of a homosexual judge. If the arguments of the opponents of same sex marriage are even partly true, it seems to me that the personal lives of heterosexual judges would also be “radically” altered. Your comment seems to admit that both homosexuals and heterosexuals would have an interest in the outcome of the case. You merely argue that the homosexual judge would have a higher “level” of interest. In other words, the difference is not one of kind but merely one of degree. A great basis for disqualifying a judge–his degree of interest in the case is higher than another judge’s might be.
February 10, 2010, 6:20 pmShelbyC says:
If the judge rules in favor of gay marriage, he will be able to marry. A straight judge’s ability to marry would not be affected no matter which way he ruled. Personally I don’t think this is enough, though.
February 10, 2010, 6:23 pmepluribus says:
Dave N.:
Here, where Justice Kennedy wrote:
February 10, 2010, 6:29 pmMichelle Dulak Thomson says:
To second Dave N. (sort of),
What have the initiative backers’ personal views to do with anything? If the initiative passed because of irrational “animus,” then the place you want to look for the animus is among the voters, not the drafters.
February 10, 2010, 6:31 pmMichelle Dulak Thomson says:
epluribus (quoting Kennedy, who was quoting I-should-know-who),
“[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”
But, again, the “desire” in question is presumably the desire of the people who actually enact the measure, not that of the people who propose it. Once the thing’s on the ballot, the sponsors are in the position of everyone else in the state: citizens with one vote each.
February 10, 2010, 6:36 pmzuch says:
Not if you believe the defendants. A ruling allowing gay marriage would destroy heterosexual marriage for everyone for all time, and would definitely affect a straight judge’s ability to marry. All the available females, for instance, would be out attending Lysistrata parties and marrying each other and telling people like him to GFH.
Cheers,
February 10, 2010, 6:44 pmtroll_dc2 says:
ShelbyC points out the obvious answer. A ruling in favor of gay marriage gives a gay judge an option that he did not before have but gives nothing to a straight judge. In fact, the proceedings to date suggest that this particular gay judge seems to have been steering the case to reach the pro-gay result.
February 10, 2010, 6:51 pmtroll_dc2 says:
What the defendants claim has nothing to do with the legal issue.
February 10, 2010, 6:54 pmMichelle Dulak Thomson says:
zuch,
IANAL and all, so I don’t know whether it is usual to call people who supported an initiative that passed and then was challenged “defendants.” They are not being prosecuted here, are they? I thought it was the constitutionality of the initiative that was at issue.
February 10, 2010, 6:56 pmepluribus says:
Michelle Dulak Thomson:
You do understand, don’t you, that voters who enact state initiatves are bound by the United States Constitution? It would be no answer to a state initiative to enslave blacks that the animus was merely “among the voters.” Or that voters, being voteres, are entitled to exhibit “animus” when they pass laws? You do understand, don’t you, that the Colorado law held unconstitutional in Romer v. Evans was passed by the voters? The Supreme Court held it was unconstitutional because it was the product of “animus.”
February 10, 2010, 6:57 pmDavid Schwartz says:
Has there been any case that has addressed how you determine motive in the case of a law passed by ballot? The initiative’s authors didn’t make it a law, the voters did. I can’t see how you can have any rational analysis of a law passed by initiative other than by looking at what government interests, if any, it actually does serve. An analysis of intent seems bizarre to me.
February 10, 2010, 7:01 pmepluribus says:
David, why don’t you read Romer v. Evans?
February 10, 2010, 7:03 pmMichelle Dulak Thomson says:
epluribus,
You do understand, don’t you, that voters who enact state initiatives are bound by the United States Constitution? &c.
Yes, of course. My point was that the intent that has to matter in determining whether “animus” was behind the passage of an initiative is the intent of the people who actually enacted it, which makes the intent of the people who drafted it not pertinent.
It really ought to make no difference what was in the minds of the drafter(s) or campaigners for the initiative; what should matter is whether it passed because of “animus.”
The attempt to force disclosure of Prop. 8 campaign e-mails, internal documents, & whatnot looks to me like an attempt to pin the opinions of the drafters on the voters. There’s no reason to believe that the people that campaigned for Prop. 8, or gave money to the campaign, had the same reasons to do so that CA voters did when they voted for the thing.
[Disclosure: Voted against Prop. 8.]
February 10, 2010, 7:08 pmDave N. says:
Michelle Dulak Thomson,
Thank you. I think you are making my argument better than I was.
I notice that John Herbison did not answer my question as to whether Proposition 8 would be constitutional if its sponsors had the most altruistic of motives. If the answer to that question is “No” then there would be no need for a trial — it would be a classic case for summary judgment.
As I have tried to say, the paragraph from Romer being waived like a bloody shirt has nothing to do with the motive of the sponsors.
February 10, 2010, 7:22 pmMichelle Dulak Thomson says:
epluribus,
David, why don’t you read Romer v. Evans?
If he does, he will likely find what I did when I read it: that there’s nothing in there about assessing drafters’ intent from their professed opinions, or delving into their correspondence. And there’s definitely nothing to suggest that drafters’ views matter more than voters’ views. Indeed the main argument is that you can infer the “animus” just from the law itself, there being no other explanation for its contents.
Contrast, please, with the Prop. 8 business, where evidently the drafters’ and proponents’ views and aims seemed of interest.
February 10, 2010, 7:24 pmJohn Herbison says:
The Plaintiffs in this civil case are four gay persons who applied for and were refused a marriage license. The named party Defendants were represented by the Attorney General of California, who declined to defend the constitutionality of Proposition 8. Various supporters of Prop 8 then moved the federal district court to be permitted to intervene in defense of the amendment, and the judge granted their motion(s) to intervene. They are correctly labeled as Defendant-Intervenors. Lead counsel for the Defendant-Intervenors is Charles Cooper, who served as Solicitor General of the United States during the Reagan administration.
February 10, 2010, 7:24 pmMichelle Dulak Thomson says:
John Herbison,
Ah. Thank you.
February 10, 2010, 7:31 pmepluribus says:
I would agree that the private opinions of the drafters and the campaigners would not be relevant, except to the extent that they are communicated to prospective voters. When people draft initiatives and campaign for their passage they rarely keep their opinions about the initiatives private. Unless they are total hypocrites, if they believe the initative should be passed they explain why they believe that. One of the purposes of the trial is to determine what opinions were transmitted to the voters by the drafters and the campaigners. This is entirely relevant. If the opinions exhibited mere animus against a particular group of people, that would bear on the question of whether the initiative can stand scrutiny under Romer v. Evans.
February 10, 2010, 7:36 pmspasticblue says:
I believe Zuch is referring to the defendant-intervenors. The nominal defendants in this trial are the governor and other state officials, none of whom are offering a defense of Prop 8. Because of this, the proponents of Prop 8 intervened and are defending the amendment in court.
February 10, 2010, 7:42 pmepluribus says:
Please. Animus is a motive. If the sponsors were motivated by animus, that is quite relevant to the constitutionality of the initiative under Romer. Why do I get the feeling that defenders of Proposition 8 are trying to conceal something? Namely, their motive.
February 10, 2010, 7:43 pmMichelle Dulak Thomson says:
epluribus,
One of the purposes of the trial is to determine what opinions were transmitted to the voters by the drafters and the campaigners. This is entirely relevant. If the opinions exhibited mere animus against a particular group of people, that would bear on the question of whether the initiative can stand scrutiny under Romer v. Evans.
That’s entirely fair. But it doesn’t account for the anti-Prop.-8 team’s attempt to force disclosure of internal documents. You could find out what was “transmitted to the voters” by a survey of print and TV ads, the sample ballot arguments, &c. The awkward thing is that these by themselves really don’t exhibit “animus,” so if that’s what you want to find you have to go hunting further afield.
February 10, 2010, 7:45 pmvic says:
That is an argument that while it maintains a certain logical stream, it is still as absurd, in the same vein as many of the arguments my teenage son makes. And this from a academic practicing lawyer.
I am by the way FOR gay marriage,, but against absurd arguments from unintelligent pseudointellectuals
February 10, 2010, 7:58 pmJohn Herbison says:
Forgive me if I was unclear. As I stated earlier, the Romer v. Evans issue is one issue among several in the lawsuit, and the motive(s) underlying adoption of the amendment are relevant to that extent. Absent a stipulation or express and unambiguous admission of culpability by the party sued, the question of motive can rarely be determined at the summary judgment stage, and a full evidentiary record needs to be developed at trial.
If the only governmental interest served by the challenged amendment is animus toward or a desire to harm gay persons, then Romer is dispositive and Proposition 8 offends equal protection under the Fourteenth Amendment because it fails the rational basis test. If, based upon an evidentiary record, one or more other governmental interests are put forth, then it becomes necessary for the trial judge to inquire further to determine whether the proffered interest(s) are in fact advanced by the amendment. If not, no rational basis exists, and the amendment offends equal protection.
The standard of review under the equal protection clause is disputed in this case, and the district judge will determine what standard of review applies. Romer, which applied the rational basis test to an amendment to the Colorado Constitution which had been adopted by amendment, is the Supreme Court precedent most nearly on point.
Other decisions of the U. S. Supreme Court, such as Loving v. Virginia, 388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S. 374 (1978), and Turner v. Safley, 482 U.S. 78 (1987), recognize that the right to marry is a fundamental right for purposes of equal protection analysis. Where a fundamental right is burdened by a governmental regulation, the burden is on the State to show that the challenged regulation is necessary to achieve a compelling governmental interest and that such interest cannot be achieved by means less restrictive of individual liberty. This showing ordinarily requires an evidentiary record.
Accordingly, even if the sponsors and supporters of Proposition 8 had motives pure as the driven snow, that does not settle the question of whether the amendment is or is not constitutional, in that the district court would still need to determine (on an evidentiary record) whether the asserted governmental interests identified by the State, or here the Defendant-Intervenors, are served by the amendment.
Again, forgive me if I was too subtle before. I am rarely accused of subtlety.
February 10, 2010, 8:00 pmMichelle Dulak Thomson says:
John Herbison,
Accordingly, even if the sponsors and supporters of Proposition 8 had motives pure as the driven snow, that does not settle the question of whether the amendment is or is not constitutional, in that the district court would still need to determine (on an evidentiary record) whether the asserted governmental interests identified by the State, or here the Defendant-Intervenors, are served by the amendment.
Yes, yes, I see all that. And so, presumably, did the lawyers on both sides of this case. So why (again) was an attempt made to probe the motives of the sponsors? I said above that Romer seems to suggest that you can gauge “animus” from the text itself, in context. You say the same. No one, in fact, seems here to be arguing that what the drafters of the initiative thought has any constitutional significance, except insofar as it may have been communicated to the public at large.
February 10, 2010, 8:09 pmRPT says:
So far we have had a very good discussion of the issues, but no solution offered. Walker determined for himself (like Justice Scalia on his Cheney hunting trip case and Bush v. Gore where his son was counsel on one side) that he was not disqualified under the pertinent statutes and rules. No litigant challenged his service on the case before and no one has now. It is hard to believe that the defendants made no inquiry into this issue at any time prior to trial. Should Walker have calculated the effect his service would have had on the plaintiff side and withdrew in order to help them? Does that seem like an appropriate neutral standard? If neither the judge nor the litigants have a problem with the assignment, then this is usually the end of the story. Walker’s challenged pretrial rulings have been reversed, and it is obvious his decision will be closely scrutinized on appeal by all parties on all sides. Isn’t that the end of the story?
February 10, 2010, 8:13 pmJohn Herbison says:
I would surmise that, this being a bench trial, the judge was allowing both sides to present evidence which may ultimately not be considered. Without a jury present, a trial judge often tends to allow development of a fuller evidentiary record and to later sort out, in his capacity as finder of fact, what is germane to the issues at bar and what should not be considered. The converse–exclusion of evidence that may or may not be relevant–risks an appellate court’s ruling that proffered evidence had wrongly been excluded, so as to necessitate the taking of further proof after remand.
State of mind is ordinarily shown by circumstantial evidence. It may be that Judge Walker (or a reviewing court) can divine motive from the text of the amendment alone. Then again, it may not be. Judicial economy is better served by a broader inquiry than by a narrow inquiry, so as to lessen the likelihood that a remand for taking additional proof.
February 10, 2010, 8:23 pmShelbyC says:
Well, you probably should view their claims a little more skeptically. :-)
February 10, 2010, 8:51 pmShelbyC says:
Of course, it’s helpful to keep in mind the fact that the gay marriage ban doesn’t, in fact, treat gays and straights differently, it bans SSM for gays and straights alike. Has anyone ever heard of a judge being asked to recuse himself because he may have a greater desire to engage in a regulated or banned activity than some other judge? I sure haven’t.
February 10, 2010, 8:57 pmMichelle Dulak Thomson says:
Hmm. I am still not seeing any scenario in which the motives of the drafters and supporters of the initiative, as expressed in private rather than in communications with the voting public, could possibly matter here.
State of mind is ordinarily shown by circumstantial evidence. It may be that Judge Walker (or a reviewing court) can divine motive from the text of the amendment alone. Then again, it may not be.
If it can’t be divined from the text, then it has to be divined from the minds of the enacters. Not the drafters, or their lobbyists. It is not the people who pushed for the initiative that passed it.
February 10, 2010, 8:57 pmSmallholder says:
The Judge’s sexuality is actually a benefit to the anti-gay bigots. If you read the transcript of the case, the defendents got destroyed. The storyline of the bigots is that they are not getting a fair trial from the judge and that the judge is steering the case towards a pro-gay result. Perhaps the judge isn’t steering anything – the defendent’s case, put forward with all the energy they could muster, was embarassingly bad. This is why they didn’t want the case televised – they knew that most people won’t read the transcripts and they can continue to lie about having a constitutionally sound case.
February 10, 2010, 10:47 pmJohn Herbison says:
The trial judge, as finder of fact in a bench trial, may draw the inference that those voters that approved Proposition 8 agreed with the message(s) that the proponents of the amendment were putting forth. He is not required to draw that inference; however, the Plaintiffs were entitled to show what messages were being communicated to the voting public in support of the referendum.
February 10, 2010, 11:19 pmepluribus says:
John Herbison’s observations about this trial are most helpful.
February 11, 2010, 6:09 amMichelle Dulak Thomson says:
John Herbison,
The trial judge, as finder of fact in a bench trial, may draw the inference that those voters that approved Proposition 8 agreed with the message(s) that the proponents of the amendment were putting forth. He is not required to draw that inference; however, the Plaintiffs were entitled to show what messages were being communicated to the voting public in support of the referendum.
[emphasis mine]
The message that the proponents were putting forth is a matter of public record. This (again) has nothing to do with private communications within the pro-Prop.-8 team.
February 11, 2010, 1:53 pmepluribus says:
Michelle Dulak Thomson:
What do you mean by “public record”? Certainly it is not limited to the official statements in the voter pamphlet. What about television ads? Speeches? Letters? One-on-one oral communications? Websites? Emails? Is it your contention that none of this material is properly admissible as evidence in the trial? Why would you take such a narrow view of admissible evidence? Do you suspect that a wider view would hurt the cause of the proponents of Proposition 8? It is no answer just to say that it is “irrelevant.” Why do you believe that it is irrelevant? To me, it seems powerfully relevant.
February 11, 2010, 3:38 pmMichael Ejercito says:
It is absolutely appalling that Attorney General Brown refuses to defend the state constitution.
There are legal precedents on this issue that undermine the plaintiffs’ case. In Minor v. Happersett , the U.S. Supreme Court upheld a law prohibiting women from voting against an equal protection challenge.
In Rostker v. Goldberg , the U.S. Supreme Court upheld a law requiring men, but not women, to register for a possible draft against an equal protection challenge.
In Michael M. v. Superior Court , the U.S. Supreme Court upheld a law punishing underage boys for having sex with underage girls, but not underage girls for having sex with underage boys, against an equal protection challenge.
And in Baker v. Nelson…
Why was Romer insufficient to overturn anti-bigamy laws, which were passed solely because of animosity towards Mormons?
February 22, 2010, 2:07 pm