damnum absque injuria

August 6, 2010

On Vaughn Walker’s Non-Recusal

Filed under:   by Xrlq @ 9:49 pm

Patterico asks whether it was proper for a gay judge to rule on the constitutionality of gay marriage. My take is that to the extent you agree with Judge Walker’s substantive ruling that allowing gays to marry in no way diminishes the value of a traditional marriage, while it obviously makes a huge difference to gays, you should oppose his decision to take the case to begin with. On the flip side, to the extent you think his ruling was substantively wrong, and that gay marriages really do undermine the value of straight ones, then it follows that straights and gays are equally conflicted on the issue and therefore, there was no more reason for a gay judge to recuse himself than there would have been for a straight one to have done so. Discuss.

7 Responses to “On Vaughn Walker’s Non-Recusal”

  1. Tom J Says:

    I fail to see how he was not required to recuse himself, as he is among the (very small) minority materially affected by the outcome.

    That may well be the real way to get this case overturned …

  2. Xrlq Says:

    I’m not sure it’s worth the effort since this is going to be appealed, and lower court legal rulings are reviewed de novo. It would be a bit odd to see the case set aside by its opponents on the theory that Walker’s ruling was substantively correct!

  3. nk Says:

    I agree. The appeal will (and should) be on the merits. There might be some shadow, though, which will deprive Judge Walker of the benefit of the doubt on some close questions.

  4. Jody Says:

    What about the other combinations?

    I think the full set is:
    1) Diminishes, does not make a difference
    2) Does not diminish, does not make a difference
    3) Diminishes, makes a difference
    4) Does not diminish, makes a difference

  5. Lisa Says:

    If the Prop 8 supporters thought the judge was biased, they should’ve filed a motion to recuse during the case. They didn’t do that, so now that it’s way too late–now that the ruling has come down–they should shut their traps instead of whining. They had their chance and chose not to take it. That’s THEIR problem.

    And in any case, it’s totally ridiculous to say he should’ve recused himself. You might as well say female judges should recuse themselves from rape cases and sexual harassment cases, black judges should recuse themselves from civil rights cases, judges over 65 should recuse themselves from cases involving Social Security or pensions, etc.

  6. Kevin Says:

    …to the extent you think his ruling was substantively wrong, and that gay marriages really do undermine the value of straight ones, then it follows that straights and gays are equally conflicted on the issue

    That doesn’t even begin to follow. First, it presupposes that straights are largely conflicted.

    Second, it assumes that the straight/gay axis is the point of contention when it could just as easily be Christian versus secular. In which case a Christian judge would be as objectionable.

    Third, you assume that the issue of whether gay marriages might undermine some straight marriages (how?) is some kind of legal argument.

    And lastly, you ignore the counter argument that “domestic partnerships” in lieu of “marriage” are far more likely to harm the institution of marriage by cheapening it with a lite version (which could lead straights to be more supportive of gay marriage than some gays are).

    Other than that, it follows.

  7. Xrlq Says:

    That doesn’t even begin to follow. First, it presupposes that straights are largely conflicted.

    Well, duh. That’s what “to the extent you think his ruling was substantively wrong” means. To the extent you do NOT think his ruling was substantively wrong, i.e., you agree with his conclusion that allowing gay marriage will not have a significant impact on straight marriage, then you should be responding to the other argument instead.

    Second, it assumes that the straight/gay axis is the point of contention when it could just as easily be Christian versus secular. In which case a Christian judge would be as objectionable.

    And in which case, pigs would also fly. Christians may have a moral objection to gay marriage that atheists do not, but neither has a personal stake in the matter by reason of his views. Gay Christians who believe gay marriage is wrong have the same right not to marry whether the law is upheld or not. Gays of all faiths, or none, who do believe in gay marriage either have the right to marry or they do not, depending on the outcome of this case. Everyone else just has a ruling they either do or don’t agree with. Big difference.

    Third, you assume that the issue of whether gay marriages might undermine some straight marriages (how?) is some kind of legal argument.

    An issue isn’t an argument, and “how” is irrelevant. The point is that gay marriage either undermines straight marriage or it doesn’t. If it does, then we all have a personal stake in the issue. If it does not, only gays do.

    And lastly, you ignore the counter argument that “domestic partnerships” in lieu of “marriage” are far more likely to harm the institution of marriage by cheapening it with a lite version (which could lead straights to be more supportive of gay marriage than some gays are).

    And lastly, you ignore that domestic partnerships, and whatever impact they may or may not have on traditional marriage, have zero/zip/nada to do with the question of whether Judge Walker should have recused himself from the case.

    Other than that, your argument is spot on.

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