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Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge rul

CriticalThought

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Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge rules - latimes.com

A federal judge on Tuesday refused to invalidate last year's ruling against Proposition 8, deciding the gay jurist who overturned the same-sex marriage ban had no obligation to step aside because of a possible conflict of interest.

The decision by Chief Judge James Ware of the U.S. District Court in San Francisco left the ruling by retired Judge Vaughn R. Walker in place. Walker’s decision remains on hold pending a separate appeal to the U.S. 9th Circuit Court of Appeals.

Walker, 67, an openly gay judge, told reporters after he retired in February that he and his partner, a physician, have been together for 10 years. ProtectMarriage, the proponent of Proposition 8, said Walker should have disclosed that prior to trial, and it asked Ware to throw out his ruling.

Supreme Court, here we come.
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

Would a black guy have to recuse himself if another black guy is being charged with a crime? I don't think so.
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

Would a black guy have to recuse himself if another black guy is being charged with a crime? I don't think so.

Exactly. To state that a gay judge could not fairly interpret the law because he is gay is ludicrous and insulting. It's all part of trying to keep the discrimination of homosexuals legal, and deny them equal treatment under the law.
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

Exactly. To state that a gay judge could not fairly interpret the law because he is gay is ludicrous and insulting. It's all part of trying to keep the discrimination of homosexuals legal, and deny them equal treatment under the law.

Worse, the idea that a gay judge could not fairly interpret the law on a gay rights case also invalidates a core argument of the Prop 8 supporters. If a gay judge cannot rule on a case because he has something to gain or lose, this would require finding a judge without something to gain or lose from the ruling. A straight judge.

Straight judges, therefore have nothing to gain or lose from homosexuals being allowed to marry. Torpedoing the whole idea that there's an attack on marriage if two dudes get hitched.
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

If a "gay" judge would have to recuse himself....then a "straight" judge would have to as well. They both would "Seemingly" have the same type of interest in the case.

This is just the right-wing bigots as their worst desperation.....nothing more....nothing less.
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

If a "gay" judge would have to recuse himself....then a "straight" judge would have to as well. They both would "Seemingly" have the same type of interest in the case.

This is just the right-wing bigots as their worst desperation.....nothing more....nothing less.

No, no, a straight judge is ok because he has nothing to lose. We should definitely allow this argument.
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

Anddd the rightys are no where to be found to attempt to justify that.
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

This is the correct decision here. He should've no more been expected to recuse himself than had it been an evangelical christian that was hearing the case instead.
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

So it is okay for 74 Democrat senators to demand that Clarance Thomas recuse himself from any lawsuits concerning Obama Care because his spouse is a lobbyist on health care issues, but there is no need for the liberal judge to even disclose his potential conflict of interest when sitting in judgement over his right to potentially get married?

Do you guys even understand what the Judicial Code of Conduct for United States Judges is?
Here is a link to the PDF.
Document Viewer

The applicable sections are 3C (1) (a) and 3C (1) (c).

Disqualification
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:
(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(c) the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding;

It is easily argued that the Judge and his partner each have a distinct and personal interest in the outcome of this trial. This trial determines whether or not they have the opportunity to marry. This has direct financial benefits for them if they choose to then get married. Estate planning, inheritance, etc. Since these two men live in California, the law that is in dispute has direct consequences for them. Had he been a gay judge who resides in Nevada, it would be moot point as he would not have the potential for direct financial benefits from his ruling.

The judicial ethics require him to recuse himself if a reasonable person would believe that he could be biased in the case. If he does not believe that he is biased, then he must explain why he can be impartial and unbiased.

And if you look at his "finding of facts" from the case, you can see that many of the "facts" he lists were never addressed in his court. Add to this the two incidents with the Appeals court and Supreme courts reprimanding him over his actions prior to testemony and it really looks like he was and is biased.
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

So it is okay for 74 Democrat senators to demand that Clarance Thomas recuse himself from any lawsuits concerning Obama Care because his spouse is a lobbyist on health care issues, but there is no need for the liberal judge to even disclose his potential conflict of interest when sitting in judgement over his right to potentially get married?

Do you guys even understand what the Judicial Code of Conduct for United States Judges is?
Here is a link to the PDF.
Document Viewer

The applicable sections are 3C (1) (a) and 3C (1) (c).

Disqualification
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:
(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(c) the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding;

It is easily argued that the Judge and his partner each have a distinct and personal interest in the outcome of this trial. This trial determines whether or not they have the opportunity to marry. This has direct financial benefits for them if they choose to then get married. Estate planning, inheritance, etc. Since these two men live in California, the law that is in dispute has direct consequences for them. Had he been a gay judge who resides in Nevada, it would be moot point as he would not have the potential for direct financial benefits from his ruling.

The judicial ethics require him to recuse himself if a reasonable person would believe that he could be biased in the case. If he does not believe that he is biased, then he must explain why he can be impartial and unbiased.

And if you look at his "finding of facts" from the case, you can see that many of the "facts" he lists were never addressed in his court. Add to this the two incidents with the Appeals court and Supreme courts reprimanding him over his actions prior to testemony and it really looks like he was and is biased.

So, you're saying a straight judge has nothing to gain or lose as a result of deciding this case?
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

So it is okay for 74 Democrat senators to demand that Clarance Thomas recuse himself from any lawsuits concerning Obama Care because his spouse is a lobbyist on health care issues, but there is no need for the liberal judge to even disclose his potential conflict of interest when sitting in judgement over his right to potentially get married?

Those are not remotely comparable. Being a lobbyist is practically the definition of a conflict of interest. A better analogy would be this: Would Clarence Thomas need to recuse himself from any case the Supreme Court reviewed dealing with affirmative action? Of course not, and it would be racist for anyone to even suggest that he would.

Besides, the anti-gay marriage argument has always been that EVERYONE is affected by gay marriage, and therefore society has a compelling interest in restricting it. If that is the case, then a straight judge would also have a conflict of interest. And if that's not the case, then it's flat-out discrimination for the sake of discrimination which is obviously unconstitutional.
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

Hmm...an instance of Walker not being biased in a case against gay's...Along with a very good point comparing different Propositions that the majority of California voters voted in..but got thrown out...

"It" was the fact that Walker, years earlier, as an attorney, had represented the U.S. Olympic Committee (which is almost as vigilant as Disney about its brand) in a trademark lawsuit against the Gay Olympics.

That case went to the U.S. Supreme Court, which may be where Proposition 8 is ultimately headed, and you know what? Those "activist judges" sided with Walker, and the "Gay Olympics" lost.

And the other argument being put forward, that "majority rules" and because Proposition 8 won a majority of votes, those voters’ wishes are being violated by this ruling? Well, in the checks-and-balances system, the voters do not always have the last say.

In a precedent-setting legal exercise nearly 50 years ago, the California Legislature had passed the Rumford Fair Housing Act, which banned discrimination against ‘’colored’’ property renters or buyers. (Restrictive covenants about not selling to minorities were written into a number of deeds and real estate transactions.)

About 2/3 of California voters overturned the Rumford Act when they passed Proposition 14, which, like Proposition 8, had amended the California Constitution. Proposition 14 said Californians could indeed refuse to sell or rent to anyone for any reason. Eventually, the U.S. Supreme Court ruled that Proposition 14 violated the 14th Amendment, and it didn’t matter if 100% of Californians had voted for it -- it was racial discrimination, and unconstitutional. The equal protection clause that Walker cited in his Proposition 8 ruling is part of that same 14th Amendment.

Link

Now as for the gay jurist in the OP...considering both the opposition and proponents of Prop 8 have to vet and agree to let potential jurorers be a juror...sounds to me like the proponents knew that they are on shakey ground so let that gay juror slide in so that they could try and make a case later to have the case thrown out.
 
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Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

Besides, the anti-gay marriage argument has always been that EVERYONE is affected by gay marriage, and therefore society has a compelling interest in restricting it. If that is the case, then a straight judge would also have a conflict of interest. And if that's not the case, then it's flat-out discrimination for the sake of discrimination which is obviously unconstitutional.

This is the key thing and the point most conservatives upset over this don't seem to understand. If a strait judge did not have a similar conflict of interest(more if they are married), then the whole legal argument in defending SSM restrictions falls apart.
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

This is the key thing and the point most conservatives upset over this don't seem to understand. If a strait judge did not have a similar conflict of interest(more if they are married), then the whole legal argument in defending SSM restrictions falls apart.

We have Gay marriages here in Canada and I doubt anyone even notices.

I'm as straight as an arrow but in the unlikely event I ever broke the law I wouldn't care whether the judge was man or woman, straight or Gay. It's all about honesty and justice.
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

You all seem to miss the point I was making. A gay judge who did not live in California would not have had any reason to recuse himself as the law he was judging would not affect him directly. Walker lives in California, so has the potential to see significant monetary or personal gain from his decision. This is the basis for the appearance of a conflict of interest. No that he is gay but that he stands to directly gain from the outcome of this decision. As such, he should have recused himself. A reasonable person would be able to see the distinction here.

As for the argument that a straight judge would also have a conflict of interest, there is no direct personal or financial gain for a straight judge whether or not the law is upheld or overturned. He gains or loses no rights, benefits, etc. If you are making the assumption that as a straight man, he must be biased, then you are essentially saying that nobody should be allowed to judge this case except a gay man.
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

Yes he did.
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

Conflict of interest why? The only way to avoid a conflict of interest in this case would be to bring in a-sexual, marriage-neutral jurors. Good luck w/that.
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

You all seem to miss the point I was making. A gay judge who did not live in California would not have had any reason to recuse himself as the law he was judging would not affect him directly. Walker lives in California, so has the potential to see significant monetary or personal gain from his decision. This is the basis for the appearance of a conflict of interest. No that he is gay but that he stands to directly gain from the outcome of this decision. As such, he should have recused himself. A reasonable person would be able to see the distinction here.

As for the argument that a straight judge would also have a conflict of interest, there is no direct personal or financial gain for a straight judge whether or not the law is upheld or overturned. He gains or loses no rights, benefits, etc. If you are making the assumption that as a straight man, he must be biased, then you are essentially saying that nobody should be allowed to judge this case except a gay man.

A straight judge would still have something to gain if he is against SSM. That gain would be that Prop 8 would have stayed.
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

You all seem to miss the point I was making. A gay judge who did not live in California would not have had any reason to recuse himself as the law he was judging would not affect him directly. Walker lives in California, so has the potential to see significant monetary or personal gain from his decision. This is the basis for the appearance of a conflict of interest. No that he is gay but that he stands to directly gain from the outcome of this decision. As such, he should have recused himself. A reasonable person would be able to see the distinction here.

As for the argument that a straight judge would also have a conflict of interest, there is no direct personal or financial gain for a straight judge whether or not the law is upheld or overturned. He gains or loses no rights, benefits, etc. If you are making the assumption that as a straight man, he must be biased, then you are essentially saying that nobody should be allowed to judge this case except a gay man.

So a straight judge would not stand to gain. Therefore, straight people lose nothing if two dudes get married. There's no "attack on marriage." Nothing is being taken from you.
Yes, that has been our point all along, thank you.
 
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Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

So, you're saying a straight judge has nothing to gain or lose as a result of deciding this case?

I don't know. I see a lot of straight folk who seem to have something to gain or lose in the SSM debate. They keep saying something about defending marriage and blah blah blah.
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

This is the key thing and the point most conservatives upset over this don't seem to understand. If a strait judge did not have a similar conflict of interest(more if they are married), then the whole legal argument in defending SSM restrictions falls apart.

Bull ****! You folks are always saying that gay marriage doesn't affect heterosexuals at all, so which is it, you can't have it both ways?

Furthermore, a literal reading on the law is inescapable, and Walkers ruling might indeed be thrown out based soley on his sexuality. I wonder if any of you holier than thou gay supporters would feel the same way if a polygamist was the judge ruling in a similar fashion? Oops.. What about a celibate pedophile, a drunk, drug user, anyone that has a lifestyle that they wish to legitimize ruling in favor of their lifetsyle.

Don't give me the tired old arguments gay is not a choice blah blah.. YOU can't prove it isn't anymore than I can prove it is, so let's do ourselves a favor and argue the merits of my above assertion. Don't distract, and answer the questions..

Thank God it's Friday.. :)

/Rant over.. Feeling better already. :)


Tim-
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

Bull ****! You folks are always saying that gay marriage doesn't affect heterosexuals at all, so which is it, you can't have it both ways?

And neither can you all. You can't say that it affects straights, but then suggest straights wouldn't be prejudiced by a gay man would be.

Furthermore, a literal reading on the law is inescapable, and Walkers ruling might indeed be thrown out based soley on his sexuality. I wonder if any of you holier than thou gay supporters would feel the same way if a polygamist was the judge ruling in a similar fashion?

Would have no issue with it based on him being a polygamist, if I had issues it would be constitutionally based.

Oops.. What about a celibate pedophile, a drunk, drug user, anyone that has a lifestyle that they wish to legitimize ruling in favor of their lifetsyle.

Again, I don't care about them so much as I care about thier legal reasoning. If that is faulty, then I will complain and argue. If their legal reasoning is sound, but they happen to be part of said group, then I'm not going to harp on it because it doesn't change the legal soundness of their argument.

In this case, the Judges argument was sound constitutionally imho.

Don't give me the tired old arguments gay is not a choice blah blah.. YOU can't prove it isn't anymore than I can prove it is, so let's do ourselves a favor and argue the merits of my above assertion. Don't distract, and answer the questions.

And similarly you can't prove that being straight is any less of a choice than gay if you subscribe to that theory. That said, the choice of the grouping matters little to me in this case. Perhaps if the Judge had actively brought suit previously to make marriage legal, or had been a political proponent of it, then I'd say differently. However, simply being gay does not automatically make you biased towards allowing gay marriage any more than being a fundamentalist christian (also a "choice") would bias you against it.

Would you allow a strong christian judge rule over this case?
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

Zyph -
And neither can you all. You can't say that it affects straights, but then suggest straights wouldn't be prejudiced by a gay man would be.

In this context though, Walker stood to realize gain precisely, and materially relevant to the subject matter. With a heterosexual judge you simply cannot make that argument. If anything, all you could argue is that a heterosexual judge would only preserve the traditional rights inferred by marriage.

Would have no issue with it based on him being a polygamist, if I had issues it would be constitutionally based.

The law, through its storied history can be manipulated, and interpreted in many different ways. Walkers ruling ultimately comes down to an interpretation of the 14th, and due process. When the SCOTUS gets this case, so too will they interpret the law based on the same set of facts.

Again, I don't care about them so much as I care about thier legal reasoning. If that is faulty, then I will complain and argue. If their legal reasoning is sound, but they happen to be part of said group, then I'm not going to harp on it because it doesn't change the legal soundness of their argument.

In this case, the Judges argument was sound constitutionally imho.

Fair enough. I can live with that, I too am partial to the soundness of any decision, but rather than bring up that whole debate again, let's just agree to disagree on just how sound Walkers ruling was.

And similarly you can't prove that being straight is any less of a choice than gay if you subscribe to that theory. That said, the choice of the grouping matters little to me in this case. Perhaps if the Judge had actively brought suit previously to make marriage legal, or had been a political proponent of it, then I'd say differently. However, simply being gay does not automatically make you biased towards allowing gay marriage any more than being a fundamentalist christian (also a "choice") would bias you against it.

Except that, Walker has been in a committed relationship for 10 years, and a right that did not previously exist, is up to him, and only him, as to whether that right, should now exist. Being a fundamental Christian would matter only if religion or any expression thereof was used in the rationale for deciding the case, and if so, then yes, it would make the ruling invalid.

Would you allow a strong christian judge rule over this case?

Yes, as I doubt very much that someone's religion would play any part in the deciding factor, because if it did, it would be easy to demonstrate.

Furthermore, I reject the comparison that if homosexuality is a choice, then so too is heterosexuality. I can't prove it any more than you can, but in terms of anecdotal, and directly observable evidence, I am in no position to doubt that heterosexuality, or opposite sex pairing is the baseline for all, or almost all life on Earth.


Tim-
 
Re: Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge

This was a good precedent.

Had they ruled otherwise, then any time a heterosexual judge with a girlfriend presided over a case concerning marriage, they would have to recuse themselves because it could potentially impact them.

This puts an unreasonable demand upon any judge to recuse themselves if they could have any potential benefit at any time.
 
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