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.