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Tuesday, April 26, 2011

Picking your spots and your arguments

Opponents of marriage equality are, rightfully so, offended by the use of the epithet "bigoted" to describe their position. They also are resistent to the equation of marriage equality (and LGBT equality generally) and race and gender equality. Fair enough. But if advocates of the anti-marriage position want to avoid being lumped in with retrograde opponents of racial equality of a generation ago, they might be well-advised to avoid adopting retrograde arguments.

Case in point: The motion filed Monday in the distict court by the intervenors defending Proposition 8, arguing that the ruling by Judge Walker (who has since retired) should be vacated on the ground that Judge Walker should have recused himself from the case. Why? Because Judge Walker, who is openly gay, has been involved in a long-term relationship and failed to disclose that relationship. That--combined with a number of rulings with which the intervenors disagreed and the fact that Judge Walker reached a different result as to the constitutionality of the ban on same-sex marriage under the U.S. Constitution--demonstrates at least the appearance of partiality and a nonwaivable conflict of interest. The intervenors were quick to qualify their argument:

It is important to emphasize at the outset that we are not suggesting that a gay or lesbian judge could not sit on this case. Rather, our submission is grounded in the fundamental principle, reiterated in the governing statute, that no judge “is permitted to try cases where he has an interest in the outcome.” In re Murchison, 349 U.S. at 136. Surely, no one would suggest that Chief Judge Walker could issue an injunction directing a state official to issue a marriage license to him. Yet on this record, it must be presumed that that is precisely what has occurred. At a bare minimum, “[r]ecusal is required” because former Chief Judge Walker’s long-term committed relationship, his failure to disclose that relationship at the outset of the case, his failure to disclose whether he has any interest in marriage should his injunction be affirmed, and his actions over the course of this lawsuit give rise to “a genuine question concerning [his] impartiality.” Liteky, 510 U.S. at 552.

First, if you have to state that qualification to your argument, your argument is probably in trouble.

Second, the irreducible force of their argument is just that--no gay or lesbian judge should sit on this case. The intervenors' argument explicitly equate a ruling recognizing a general right with a ruling granting that right to Walker himself as the plaintiff. Worse, if the concern is that Walker himself might want to marry (and thus would directly benefit from the ruling), his relationship status actually is not relevant. Logically, it is enough that Walker is gay and may someday hope to get married, because such a judge still will benefit from that ruling. Walker's benefit might be more immediate because he actually has someone in his life whom he might want to marry and is not still waiting to meet the right person. But he still would benefit from the ruling, even if he had not yet met "The One," because the opportunity to marry would be open to him.  I suppose the only acceptable gay judge might be one who is gay and has sworn off the institution of marriage (although I suppose the intervenors then would argue that the judge should recuse because he bears some patent hostility to the institution of marriage, meaning he is willing to make a ruling that destroys the institution).

Third, some opposition to marriage equality rests on some notion that recognizing same-sex marriages harms opposite marriages and the heterosexuals in those marriages. If that is the case, couldn't you argue that a heterosexual judge (married or unmarried) should have to recuse, since he will benefit from a ruling  upholding Prop 8, since it "protects" the institution in a way that benefits his opposite-sex marriage. Or take it out of the "same-sex marriage devalues my marriage" argument. Suppose a lawsuit was brought arguing that all civil marriage violates the Establishment Clause by giving civil recognition to what is at bottom a religious determination (I have heard this floated in academic circles). Wouldn't a married judge have to recuse, because the ruling would either benefit or invalidate her marriage? Wouldn't a single judge have to recuse, because she may someday hope to marry--which would be possible or impossible, depending on her ruling? Obviously this argument is not likely to come to court. But the point is that any lawsuit about the status of the institution of marriage affects everyone who is or may hope to be married.

Fourth, any recusal argument is destined to fail and to be poorly received if it appears that the argument imposes on judges who fall within a historically disadvantaged group obligations that judges outside that group do not bear. So, consider: Is there any situation in which a heterosexual judge would ever be required to disclose to the parties her relationship status (putting aside where, say, the judge was in a relationship with someone who owned stock in the defendant company) or her sexual orientation? If the answer is no, then we cannot impose such an obligation on a gay, lesbian, or bisexual judge.

Finally, when arguments such as this come up, I like to go back to the opinion by Judge Leon Higginbotham, one of the earliest Black district judges, then on the Eastern District of Pennsylvania (and later the Third Circuit) in Commonwealth of Pa. v. Local Union 542, Int'l Union of Operating Engineers. In a Title VII action by a class of black workers, the defendant union sought Higginbotham's recusal. Higginbotham refused in a broad, scholarly, and pointed opinion (one that even he recognized, apologetically, may be "too long and prolix") in which he recognized that the unavoidable theory of the recusal motion is that a black judge cannot fairly adjudicate a case involving race relations. As he put it:

Perhaps, among some whites, there is an inherent disquietude when they see that occasionally blacks are adjudicating matters pertaining to race relations, and perhaps that anxiety can be eliminated only by having no black judges sit on such matters or, if one cannot escape a black judge, then by having the latter bend over backwards to the detriment of black litigants and black citizens and thus assure that brand of "impartiality" which some whites think they deserve.

Now the situation in that case was different than this one, since the recusal argument was based on a speech that the judge had made to a group of Black historians on the history of race relations. So the recusal argument was based not on Higginbotham's status (at least not explicitly) but on the positions he took in that speech. And much of the opinion is about the ability of judges to speak, particularly in academic and intellectual settings, on issues. Higginbotham also scored some shots by noting that the defense attorneys' had previously litigated cases involving black workers before him without objection--because in those cases the attorneys were representing the black workers.

But in some ways, the argument in the Prop 8 case is less defensible. Local 542 was arguing that Higginbotham had been an advocate on the issue, that he had taken sides on the merits. Here, the intervenors are arguing that Walker status as a gay man--or at least a gay man in a relationship--is a per se bar, at least to resolving a case involving LGBT rights, which could benefit him as a LGBT person.

Posted by Howard Wasserman on April 26, 2011 at 03:30 PM in Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink


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"Opponents of marriage equality are, rightfully so, offended by the use of the epithet "bigoted" to describe their position. They also are resistent to the equation of marriage equality (and LGBT equality generally) and race and gender equality. Fair enough"

Not sure why opposing equality is not "bigoted" in this case. Back in the day, reasonable sorts probably didn't want to be called bigots for opposing interracial marriages. I don't mind, you know, it's just for the children. Unfortunate, but you know. Mildred Loving btw was not "resistant" to the equation.

Don't know the stopping point of the recusal argument. What about a case about fornication? Do fornicators have to recuse themselves? Lawrence v. Texas in effect protected oral sex. General sexual privacy was argued in that case. Would a judge have to reveal their sex habits since in a given case they might benefit?

Posted by: Joe | Apr 27, 2011 9:11:17 PM

Isn't the implication that Walker's sexual orientation explains his bias? In other words, not that all gay people would be biased in this situation, but that this judge was biased and his gay identity at least partially explains his bias. If a known liberal judge engages in biased conduct toward a conservative litigant, doesn't it make sense to point out that he's a liberal as well as to point to the specific conduct? The problem with the bias is that it is pro-liberal, anti-conservative bias -- why is labeling the type of bias a step too far? Pro-gay bias is still bias, right?

Posted by: Praetor | Apr 27, 2011 5:45:27 PM

Random interesting twist - what if Judge Walker and his partner were married before Prop 8? Would he then have had to recuse himself? If your answer is yes, the thought is probably because of his interest in the continuing validity of his marriage.

But how is that any different than whether he should have recused his non-married-but-in-a-committed-relationship self?

It seems to me that either you recusal was necessary (non-married or married), or unnecessary (non-married or married). So this doesn't really seem to be about his marital status, but instead about his sexual orientation.

Posted by: J.W. Lens | Apr 27, 2011 3:20:30 PM


If the motion had been made on that narrow basis, I might agree, but from a quick glance it's clear that the basis of the motion is that Walker was biased, as evidenced first and foremost by the waivable conflict created by the combination of his homosexuality and participation in a long-term committed relationship. The release of the videotapes is merely further evidence on top of that. It seems to me that the argument being made here is that his homosexuality is irrelevant to the discussion entirely.

I tend to agree with Lawyer's point above that membership in the protected class seems irrelevant. That seems particularly true in this case where (at least some of?) the argument in favor of banning same-sex marriage is to protect opposite-sex marriage. As such, in the terms of the motion there would be a better argument that I have a conflict than would Judge Walker, because I actually am married, while he is merely in a committed relationship and there is no specific evidence of his desire to marry. Maybe only a judge who has publicly declared her lack of desire ever to marry could preside on such a case?

Posted by: mike rich | Apr 27, 2011 8:23:21 AM

This entire discussion is ignoring the relevant context. This motion is probably payback for Walker's release of excerpts from the videotapes of the trial he was unauthorized to create and promised not to disseminate. It provides a plausible basis for vacating Walker's opinion -- it's not a desperate move at all -- if one is inclined to believe he was biased in his conduct of the trial. Certainly his use of the tapes the Supreme Court ordered him not to broadcast suggests he may have been biased. It's rather egregious behavior.

The argument, I don't think, has anything to do with whether Walker is gay. It's just his apparent bias against the Prop 8 defenders, and this was the technical means to go after him for it.

Posted by: Praetor | Apr 27, 2011 4:33:17 AM

I'm guessing they would insist upon a straight appeals judge or likely get one just based on statistics. But if they win appeal then their own logic would require that appeals judge would have to recuse themselves? Which would mean that the appeals decision wouldn’t have been made, so they wouldn’t have to recuse themselves, but then they would make the decision requiring that they recuse themselves...?

Posted by: Atlanta Roofing | Apr 27, 2011 1:53:16 AM


Aren't motions for Scalia to recuse relatively common after he gives speeches expressing his views? And it worked in one case, the Newdow case.

Scalia's Recusal Sought in Key Detainee Case
Retired Officers Say Justice's Impartiality Is in Question After Remarks on Combatants

Motion for Recusal of Justice Scalia in Newdow case.

Commentary by Vik Amar on why Scalia agreed to recuse in the Newdow case.

Posted by: Orin Kerr | Apr 26, 2011 10:18:30 PM

My favorite example actually involves Justice Scalia. Sometime near the start of OT 1997, the term the Court heard Glucksberg, Scalia gave a speech in which he said there is no constitutional right to physician-assisted suicide. No one (that I recall) seriously suggested that he recuse.

As for the Thomas example: His recusal makes sense in that VMI was a party to the case. But imagine that the gender-discrimination case to come to the Court had involved The Citadel rather than VMI. No one would have expected Thomas to recuse just because his son was attending VMI, a similar school, and his educational experience would be affected by the ruling.

Posted by: Howard Wasserman | Apr 26, 2011 10:11:36 PM


I don't really understand the recusal standard myself, so I don't pretend to know.

For example, does a judge need to recuse if the judge is obviously committed to ruling one way for ideological reasons? Brennan didn't recuse in the run of cases, and I don't think even his biggest fans look at Justice Brennan as a neutral figure who was just applying the law to the facts. So is the idea that recusal is appropriate when the judge has something personal to gain beyond ideological satisfaction? I really have no idea.

Oh, and I realized there's another interesting example, re your question about parochial schools: I'm reminded that Justice Thomas recused from the VMI case because his son was at VMI. That's another interesting case.

As for the one-sidedness issue, it's interesting, but I wonder if there is more to it. Let's say that an obvious case for recusal is that a judge must recuse if he owns stock in the company involved in the litigation. We don't say that this is one-sided, on the ground that we're not considering the biases of those who *don't* own stock. Rather, our assumption is that if you're not specifically benefited, you're not affected one way or the other, even if in theory you might have some relative benefit or loss as compared to those specifically benefited. Anyway, obviously I'm a total novice at this issue just trying to grapple with it: It's fascinating, but I'm genuinely unsure of where the lines should be.

Posted by: Orin Kerr | Apr 26, 2011 10:02:49 PM


I thought about Kozinski, and that particular controversy, when I was writing the comment. Although I had forgotten that Kozinski had recused himself then. I guess the point still stands in this respect--must Kozinski now recuse in *all* obscenity cases?


Good point and one that I had forgotten to make in the original post. Yes, this recusal argument (as well as the arguments Higginbotham reject) rests on the premise that the perspective of the historically disadvantaged group is "biased," while the perspective of the historically advantaged group is neutral.

Posted by: Howard Wasserman | Apr 26, 2011 9:49:32 PM

There is a bizarre one-sidedness to this conversation. Why do we only discuss the alleged biases of a member of the allegedly discriminated-against class, but not the alleged biases of a non-member? Why do we assume that a black judge will be unfairly biased in favor of the black discrimination plaintiff, but not that a white judge will be unfairly biased against the black discrimination plaintiff? Why do we assume that a gay judge will be unfairly biased in favor of a constitutional right to gay marriage, but not that a straight judge will be unfairly biased against such a right? Isn't there the risk of an unfair bias either way?

Posted by: Lawyer | Apr 26, 2011 8:13:09 PM

For what its worth, Chief Judge Walker's sexual orientation was discussed in the San Francisco Chronicle during the trial and subsequently on local television stations.

Posted by: David Levine | Apr 26, 2011 7:47:03 PM

Howard writes: Should a judge have to disclose that he watches (non-obscene) pornography in presiding over an obscenity case? . . . I have never heard similar arguments in any of these cases. So why here?I'm reminded of this widely-noted example:U.S. judge in obscenity trial steps down
Alex Kozinski recuses himself amid an uproar over sexually explicit material that he posted on his website.
June 14, 2008
A federal appeals court judge on Friday stepped down from a high-profile obscenity trial in Los Angeles, three days after acknowledging that he had posted sexually explicit material on a publicly accessible personal website.

"In light of the public controversy surrounding my involvement in this case, I have concluded that there is a manifest necessity to declare a mistrial," wrote Alex Kozinski, chief judge for the U.S. 9th Circuit Court of Appeals. "I will recuse myself from further participation in the case and will ask the chief judge of the district court to reassign it to another judge."

Posted by: Orin Kerr | Apr 26, 2011 7:17:36 PM

Howard, it strikes me that you are making an empirical argument and a moral argument, and it is helpful to separate them. The empirical argument is that a gay judge or a black judge is neither more or less likely to rule in favor of one side or another on some issue involving sexual orientation or race. The moral argument is that even if gay or black judges were more likely to rule in favor of one side on the issue as a statistical matter, the classification is so pernicious that it should still not be a consideration.

The empirical argument is, ultimately, empirical. Someone should do a study on it (though given whatever results are found will be viciously attacked by one political side or the other, I would not volunteer to do the study for the life of me).

The moral argument is what ultimately wins the day on the race issue. Frankly, it does not matter whether black judges have a predictable way of ruling on racially charged issues as an empirical matter. We just deem that race is an illegitimate category to make recusal decisions.

But on when you apply that analogy to the sexual orientation context, you have a chicken and egg problem. We deem race suspect because that issue has been settled in our society. The gay marriage case is entirely a proxy fight for that very issue in the sexual orientation context. Now you are right that the Prop. 8 supporters are being completely disingenuous when they say they are not making an argument that being gay in-and-of-itself is disqualifying, and in this sense they have already conceded the issue. But that is ultimately where the issue turns. If you assume that sexual orientation is an illegitimate classification based on bigotry, then of course the fact that the judge is gay should not matter, just as if the judge were black. If you assume the opposite moral predicate, you reach the opposite conclusion.

Posted by: TJ | Apr 26, 2011 6:43:43 PM

Again, this conversation rests on the premise that judges who are members of historically disadvantaged groups somehow have unique disclosure/recusal obligations, at least in civil rights cases. But civil rights expansion always is going to benefit members of the groups whose rights are being expanded, including that judge. It cannot be that this requires recusal of a judge who is part of that group but not a judge who isn't or at least the disclosure of information that no member of the not-historically advantaged group would be required to disclose.

Is there really a difference between a judge having a deeply held doctrinal/normative belief in an ideal and a judge experiencing benefits from the realization of that ideal? So, to take Orin's # 3--is that different than Justice Brennan saying he wrote New York Times v. Sullivan to advance the cause of free expression? Judges still are members of society and all will benefit in some way, however abstractly, from the rulings they make. Does the level of abstraction really make a difference.

Finally, the logic of all this need not be limited to cases involving historically disadvantaged groups. Should a judge have to disclose that he watches (non-obscene) pornography in presiding over an obscenity case? Should a judge have to disclose that she opposes the Iraq War in a case involving challenges to restrictions on anti-war protesters? Should a judge have to disclose that her children go to parochial school in a case challenging private-school vouchers? I have never heard similar arguments in any of these cases. So why here?

Posted by: Howard Wasserman | Apr 26, 2011 6:43:14 PM

The argument that all gay judges would have to recuse is a real stretch. Having a particular sexual orientation does not lead to a desire or even aspiration for marriage by any stretch of the imagination. Nor is being in a committed relationship the same as wanting to get married, or even aspiring to get married at some future date. Many gay people in California, like many straight people, have no interest in getting married ever under any circumstances, and so lack a direct personal interest in the outcome of the litigation. Their interest is merely the same generalized interest in ending a stigma agaisnt his group that Judge Higginbotham had, and that is not grounds for recusal.

Marriage is a big deal - a bigger deal than a pecuniary interest in my view. The judge should have been frank with counsel as to his situation and whether he had a direct personal interest in the outcome of the litigation, i.e., whether he was interested in getting married.

Posted by: anteus | Apr 26, 2011 5:07:06 PM


I'm no expert in judicial recusals, but I'm curious, where would you draw the line? Imagine that Judge Walker gives a speech next week in which he says that he has long wanted to get married to his partner. Is that enough? Next, imagine that Walker gives an interview in which he says that his goal in holding a public trial and trying to have it broadcast was to inform the public about the great benefits and absence of harms of same-sex marriage. Is that enough? Finally, imagine that Judge Walker gives a speech in which he says that his goal in writing the opinion as he did was to advance the cause of same-sex marriage. Is that enough?

Posted by: Orin Kerr | Apr 26, 2011 5:04:23 PM

Also, I see this as different from the race/Higginbotham example, in that Higginbotham was called upon to interpret a statute that indisputably guarantees equal treatment by private employers on the basis of race. To say that he was inherently biased because he was black would be to say that he could not apply a specific, neutral law fairly to facts. If employment law were expanded to cover sexual orientation, I wouldn't object to a gay judge hearing a case brought by a gay plaintiff.

Judge Walker, by contrast, interpreted a vague provision of the constitution in a way that (we are now told) unquestionably benefitted him personally. There may be a legal argument that the two cases are comparable, but I think the appearance is very different.

Posted by: Jay | Apr 26, 2011 4:49:18 PM


But aren't you putting the cart before the horse? It seems to me that a straightforward reading of the canons DOES require a member of a discriminated-against class to recuse, where the result in the class could remove that discrimination. That's because the judge, as a member of a discriminated-against class, would indeed have an interest that would be substantially affected by the outcome of the case!

Now, that's a BAD RULE, but the fact that it's bad doesn't mean it isn't the rule.

In other words, you say: "it's clear that being gay can't be cause for recusal." But what you're really intending to say (at least I think) is that: "It's clear that being gay SHOULDN'T BE cause for recusal." But getting to that result, it seems to me, requires amending the canons, not simply ignoring them in inconvenient cases.

Posted by: casual reader | Apr 26, 2011 4:47:06 PM

Yeah, I sort-of second casual reader's confusion. Clearly, the rule cannot be that members of the discriminated-against class can't hear discrimination cases. At the same time, this post seems a bit disingenuous. Intuitively, I'd expect a judge in Walker's position to have a far greater personal stake in the marriage case than a judge who just, for example, owned some stock in one of the litigants. So it's odd to dismiss as absurd concerns that Judge Walker's interest should have been at least disclosed.

(Of course, agreeing that Walker should have disclosed his sexual orientation pushes us towards the untenable rule that only straight white males get to hear cases like this.)

Is there any precedent for this sort of recusal claim in religion or disability discrimination cases? (I'm trying to think of class memberships that wouldn't be obvious at a glance.) Scrutinizing what drives my own, arguably wrong, intuitions, it might matter that Walker was a member of a relatively small class, and that he, personally, was directly affected by the outcome (in a way a judge hearing an employment case wouldn't be).

I guess it's clear that being gay can't be cause for recusal. If being gay isn't cause for recusal, then being gay and in a relationship can't be, either. I just don't know how to reconcile that conclusion with the intuitive story about how strong personal interests create disclosure and recusal obligations.

(BTW: "Another reason might be that if he had told the attorneys he was gay, they would have filed this same motion the day after the lawsuit was filed" has to be the worst argument ever. "I'm so clearly right that my disclosure obligations are relaxed because disclosure would force me to waste my time listening to your arguments" is probably not the right attitude for a judge.)

Posted by: matth | Apr 26, 2011 4:34:57 PM

But aren't those arguments really just arguments against the recusal policy or canons of judicial conduct in general?

Seriously, I'm very confused about this; thanks for bringing it up.

The canons require recusal where the judge has any interest that may be substantially affected by the outcome of a case. Where, as here, the judge is openly gay and has been in a relationship for 10 years---circumstances where, I submit, it's reasonably likely that the judge may want to get married---isn't it fair to say that the judge has (or, at least, it is reasonably likely that the judge has) an interest that may be substantially affected by the outcome of the case, and that the canons therefore require recusal?

It seems to be a pretty straightforward application of the canons/recusal rules.

I agree that the same argument would lead to the conclusion that a black judge would not be able to preside over, for example, a voting discrimination case where the judge would be among the class of persons who could benefit from the outcome of the case.

But that just points to the fact that the recusal rule or the canon is bad policy, not that the recusal rule or canon doesn't compel recusal in the particular case. Is that correct? In all seriousness, I am actually confused about this.

Posted by: casual reader | Apr 26, 2011 4:10:17 PM

One reason might be (and this is the point of my post) that it is not relevant and no one's business what his sexual orientation. Another reason might be that if he had told the attorneys he was gay, they would have filed this same motion the day after the lawsuit was filed--and then he (as opposed to his successor judge) would have had to take the time to address this nonsense. And be accused of sounding defensive in doing so.

Posted by: Howard Wasserman | Apr 26, 2011 4:09:13 PM

How am I going to "cite" my sense of how the trial was covered, especially since I'm essentially arguing a negative (Walker's sexuality was not a topic in liberal or mainstream coverage)? Can you cite any blog post or news story not from FreeRepublic or the like that mentioned Walker was gay during the trial? As I recall, even National Review's judicial blog avoided making that assertion. I just find it a bit much that Howard Wasserman now slips the explanatory phrase "who is openly gay" into a description of Judge Walker, as if it were commonplace knowledge all along. It wasn't, because those who favored this result knew full well that it looks horrible from a PR persepctive.

Judge Higginbotham couldn't hide that he was black; Judge Walker largely managed to hide that he was gay until he left the bench, despite living in the most gay-friendly city in the country. I wonder why?

Posted by: Jay | Apr 26, 2011 4:04:16 PM


Posted by: M | Apr 26, 2011 3:54:19 PM

I have to say, it seems that it's only now that Judge Walker has left the bench that it's considered acceptable in polite company to refer to him as "openly gay." When he was presiding over the trial, one got the impression that this was at best a vague rumor promoted by right-wing sources. I don't think that speaks very well of those on the left who now want to claim it's totally irrelevant, despite their apparent embarrassment and desire not to talk about it at the time of trial.

Posted by: Jay | Apr 26, 2011 3:46:54 PM

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