“Gerard V. Bradley is a Professor of Law at the University of Notre Dame”

A law professor shouldn’t be gay-baiting a Federal judge; at least, he should be trying to do so halfway intelligently.

A fact of which Notre Dame ought to be heartily ashamed. I’m not sure which is worse: Bradley’s gay-baiting of a Federal judge or the smarmy, slimy way he did so.

If a gay judge should have recused himself from the gay-marriage case, because he might want to get married, and if (as the Prop Hate proponents asserted) gay marriage threatens the stability of straight marriages, then would any straight married judge have had a conflict of interest sufficient to generate a recusal inquiry? Do we need a class of eunuch judges to decide all cases involving sexual activity?

Presumably Gerard V. Bradley isn’t a blithering idiot in real life. Presumably he doesn’t accept this sort of dimwit argument from his law students. But as long as it’s AMDG* (or perhaps merely for the greater glory of the Red Team), he can’t even notice his own folly.

Sad, really.

* A commenter notes that I had appropriated a Jesuit motto to a Holy Cross Fathers institution. My bad.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

34 thoughts on ““Gerard V. Bradley is a Professor of Law at the University of Notre Dame””

  1. Yeah, suggesting that a federal judge has a conflict of interest because he's gay is inappropriate. Suggesting that a federal judge has a conflict because he used to own stock in a corporation whose interests are at stake in a trial is just plain stupid.

  2. But wait! By my own side's argument that gay marriage won't affect straight people, a straight man should be able to judge the case objectively…but only if he accepts that it won't affect him! If he thinks that it will affect him, he's by definition unfit to hear the case because of conflict of interest!

    (There may be some kind of logical flaw there, I suppose.)

  3. Not "used to own," Thomas. "Owns."

    In any case, I'm still waiting for someone to identify the sort of judge who would pass a broad "identify" conflict test rather than the narrow "financial interest" test. Justice Scalia is a straight male, and a homophobe. Should he recuse himself from this case?

  4. " Do we need a class of eunuch judges to decide all cases involving sexual activity?"

    That's very confused. Acccording to the article you cite: "… all judges have beliefs and personal habits which intersect from time to time with the matters in dispute before them. We do not require judges to be blank slates without a personal life. Judges are not automatons."

    Thomas above seems right to me.

  5. Prof. Bradley evidently wouldn't object to a homosexual judge who lacked any interest in a stable relationship. A solitary, whether celibate or wildly promiscuous.

  6. Now that gay marriage appears to be here to stay (at least for the time being) as the law of the land, can anyone tell me why we shouldn't be able to marry a group of people together (why does marriage have to be between two people), or why we can't marry a woman and a horse? There seems to be no good reason to stop at gay marriage.

  7. Mark, tell us which party to the case he holds stock in.

    There's throwing mud and then there's wallowing in the mud.

  8. The fact is, there's no financial advantage facing the judge in this case, because California treats gay couples in civil unions the same as it treats married couples. We should be clear about the nature of the dispute here: it's about the right to be called a particular name by the state, in the apparent hope that being called something by the state will have cultural effect.

  9. Thomas, assuming for the sake of argument that the case is solely about the right to the name "marriage," what evidence do you have that the motivation of every gay couple who wishes to have the right to that name is to affect the culture? Have you considered that some of them might feel that being denied the right is a form of bigotry against them?

  10. Bux, you approach a reasonable question (should the state recognize the loving union of more than 2 consenting, informed adults?) but you turn it up to 11 before confusing partnership with bestiality.

  11. To the reasonable question: marriage entails tax status, benefits coverage, and proxy decisionmaking that couldn't easily be stretched beyond a couple – though single-payer might lessen the 2nd issue.

  12. A small detail, Mark, but AMDG is a Jesuit thing. Notre Dame is a Holy Cross school.

    It's a bit like saying USC part of the University of California because it has the words "University" and "California" in its name.

  13. The "plural marriage" argument (borrowing the term from its common usage in HBO's Big Love) is one of the critical issues that is profoundly under-discussed in the debate surrounding the topic of gay marriage. One of the most important developments in humankind's evolution is the experience of deep and rich intimacy, a psychological and emotional phenomenon that can only be sustained between two people. With a third person (or more), there is a power dynamic that not only threatens the capacity of intimacy to be experienced–for an "I and Thou" relationship to emerge (borrowing the language from Martin Buber)–but entirely transforms the psychological dynamic of deep communication into something political and strategic.

    Pre-modern societies regularly supported plural marriage for the simple reason that there was no expectation of sustained intimacy between marital partners. The purpose of marriage was to legitimize the birth of offspring–and, of course, (according to that logic) the more children the better.

    We have–I think, quite auspiciously–arrived at an evolutionary point wherein the marriage contract is about sacralizing and deepening the emotional commitment between two persons: two independent minds, two independent consciousnesses. In this union, we have an extraordinary possibility of raising children to observe how an independent selfhood can negotiate the boundaries of his or her existence to enable a committed relationship of love and unity. Of course, in the absence of children, the relationship can flourish on its own terms. Let's face it, people have married frequently well beyond the point of fertility for years and years. Sacralizing and publicly legitimating such a relationship has been a matter of standard practice for centuries.

    My point is that monogamy is an evolutionary achievement for human consciousness and civilization. Let all loving relationships share in the possibility to experience it.

  14. "I am not saying that Judge Walker should have refused himself in Perry v. Schwarzenegger." )Cut and pasted from the Fox link Mark posted.) What's with right wingers and these words? Palin and refudiate; Fox and recuse/refuse. (I assume that this was Fox's cupertino, not Bradley's)

  15. Lars is a polygamophobe. Polygamy is not a disease; Polygamophobia is. Polygamists are what god made them. Don't ask why I am a polygamist; ask why you are not. Polygamy-pride parades. Monogamo-normative standards.

    Now, about Warren's beastiophobia …

  16. A lot of concern trolling and braying of bigotry going on here.

    I'm sure if Thomas, Bux, and Dom were adults 40-odd years ago, they'd all be reminding us how miscegenation is an offense against decency and Jeebus, and how obvious it is that Loving vs. Virginia should be overturned.

    The people that argued against legalized interracial marriages back then just look like angry bigots now, and so will you guys in 40 years (or less, hopefully).

    You're on the wrong side of history, boys, just give it up. That way you can pretend you weren't such unapologetic bigots when decent people ask you where you stood on this issue.

  17. It's true that the judge who stopped the drilling moratorium had sold his stock in Transocean, the rig operator. But that wasn't his only energy-sector investment:

    Feldman owned between $1,000 and $15,000 in EV Energy Partners, an oil and gas exploration firm; Enterprise Products Partners, which builds onshore and offshore oil and gas pipelines; Energy Transfer, which builds pipelines as well; Basic Energy Services; Provident Energy; Petrohawk Energy; Valero Energy, an oil refiner; Crosstex Energy, a natural-gas provider; and Exxon.

    He also owned between $2,000 and $30,000 worth of equity in Boardwalk Pipeline Partners, which owns two pipeline firms that deliver natural gas from the Gulf of Mexico; and between $15,000 and $50,000 worth of Ocean Energy, which designs drilling rigs. All of these investments were current as of 2009, and Feldman disclosed in a case last May that he still owned Ocean Energy shares.

    In any case, a judge can always avoid financial conflicts by selling assets. Should Judge Walker have sold his lover?

    And of course this wasn't about recusal at all: it was just a bigot yelling "Faggot!" at a judge who made a ruling the bigot didn't like. I must say it makes me think better of Ed Meese and Ronald Reagan and GHWB and Strom Thurmond that they were willing to put Walker on the bench despite his sexual orientation.

  18. The only thing worth arguing about here is which is worse, the trolls or Mark linking to Fox News.

  19. I'm sure that if Sargon is an adult 40 years from now, he (she?) will argue that only bigots were ever against polygamy, paedophilia, and beastiality. I'm right, you know. Just change you mind now, then you weren't have to pretend you weren't an "unapologetic bigot" when these issues first came up.

    It's already in the wind. Just a few more fake sociologists publishing studies "showing" that children in paedophile relations are very well-adjusted, that ancient civilizations were all happily paedophiles, that only the onset of Christianity made us bigots … This stuff writes itself.

  20. Two states in the Union have legalized same-sex marriage: Iowa and Massachusetts. Massachusetts has not fallen off into the Atlantic, nor have the Mississippi and Iowa Rivers completely inundated the Hawkeye state. Gay marriage is a non-issue in both states, except for the rabid social conservatives, who are convinced that God will smite these contemporary Sodoms. (I find it curious that they continue to live in those places despite that belief, but that's not really germane to my point.)

    We have two experiments in our little Laboratory of Democracy, and both say the same thing: Allowing gays to marry does not affect straights in any demonstrable way.

    In fact, our kids don't understand what all the fuss is about. In my intro stats course, I use an example from recent New Mexico history to demonstrate the problems with anecdotal data. Our legislature considered a civil union for gays law in 2008. Two Democratic legislators claimed that their no votes were prompted by the opinions of their constituents, not their personal beliefs. The ACLU called them on it by sponsoring reasonable size surveys of the registered voters in the two districts.

    Surprise, surprise, surprise! The surveys showed that about 55% of the registered voters in both districts supported passing the law. This was hardly the level of strong negatives the Senators claimed. Of course, they both chose to ignore the survey data. The bill went down to defeat…

    But most interesting to me is the fact that my sophomore-junior college students typically don't get what all the fuss is about. The only ones who do are social conservatives themselves.

  21. Yeah, I stand by what I said above, which is that suggesting that a judge has a conflict because in the past he owned stock in one of the parties is stupid. And repeating it, well…

    As for Bradley, I said above that he's wrong on the recusal issue, because California doesn't provide benefits to married couples that it doesn't already provide to gay couples, under different labels. And though I think Judge Walker's conduct of the trial and his opinion were not very good at all, I don't think that it's appropriate to link that to his being gay. I don't think there's any reason to believe that no gay man is capable of impartiality in a case like this, even if Judge Walker in the end wasn't capable of it.

    The only excuse I make for Bradley, and it's a weak one, is that it's not surprising to see a strong reaction to being called a bigot by a federal judge without good reason.

  22. Dennis, what do you mean, they don't get what all the fuss is about? Do you mean, they don't see what the big deal about marriage is? Or do you mean, they don't see what the big deal about self-government is?

  23. Thomas, they don't understand what the fuss over who can or can't get married. And they do generally see it as a self-government issue, in the lowest level sense of the term. If you think same-sex marriage is icky, then don't do it. They don't see any compelling government interest in regulating the matter.

    Those who do see a compelling interest view that interest through a religious lens. "It's wrong because God says it's wrong," said one of my students. I explained that the issue wasn't about right or wrong, but determining how a specified population's opinion was divided on the matter.

  24. Dennis, do you mean to say they don't understand what marriage and civil union laws do and don't do? I took it for granted that most people understood that one needn't get a license from the state to call themselves married, and that there's no legal bar to any couple (or more than that) engaging in whatever private or sexual activities they might wish to engage in. For all the talk about "bans" on gay marriage, I didn't think people misunderstood that to mean that gay couples couldn't call themselves married, or go to their church or other religious body and get "married", or conduct their lives as if married. Is that how your students interpret the issue? That this is about the liberty to do as one pleases? If so, why don't you correct their misunderstanding?

  25. Thomas, I'd be very happy indeed to solve this matter by getting the state out of the "marriage" business, and having the state only recognize domestic or civil partnerships, with people deciding whether they're "married" in consultation with their consciences and perhaps their pastors. But the point is that in most places committed couples cannot obtain a "civil partnership" if they've got matching genitalia, and there are a lot of important rights that come with state recognition of a civil partnership – recognition that in most places is accorded only as part of heterosexual marriage.

    If it were the case that in all places and circumstances the state absolutely defended a "civil partnership" fully equal in its rights to marriage (that is to say taxes, inheritance, child guardianship, visitation, proxy decisionmaking, benefits sharing, maternity/paternity leave, compassionate leave, no doubt others of which I'm unaware), the question of whether the state could still discriminate in awarding the status of "marriage" only to heterosexual couples would remain important, but it would be one of perceptions. At present, there is a situation of quite real injustice, with daily real-world consequences.

    P.S. Even in states that recognize a status of "civil partnership" equal in all of its rights to "marriage" there is an issue of discrimination, as heterosexual couples seeking to become civil partners rather than to get married have been told that they are ineligible. Not exactly a situation with the same continuing legacy of prejudice, but it's still discrimination, in this case against heterosexuals desiring to escape state sponsorship of a historically religious institution.

  26. Thomas, I haven't probed into their understanding of the issue. I don't know whether they realize that there is nothing stopping anyone from calling themselves married, and from the perspective of pedagogy I don't care. I teach statistics, not poli sci nor sociology.

    What I do know, from experience, is that there are a number of benefits accruing to married couples who have registered that relationship with the government. These benefits do not accrue to couples who have not registered the relationship. The benefits of the registration can be challenged, and you have to prove the relationship if it is challenged. Couples lacking the registration documents cannot prove the relationship, and in the case of some benefits (like filing their income taxes jointly) can be criminally penalized for fraud if they do so.

    I will admit that I have ulterior motives in picking that specific example to use in class: I'm curious about their perspective on the general issue, and it is an excellent example of the dangers of anecdotal evidence. If they haven't thought about the civil-rights issue, I want them to think about it.

    Warren, the California civil partnership law specifically excludes heterosexual couples, unless at least one partner is 62. Curious, eh? California established what amounts to a claim of separate but not-exactly-equal registration mechanisms.

    Most of Europe holds with Warren's model, and I'd be happy with that here, too. If you want to 'marry', you go to the local equivalent of the County Clerk's office and fill out the registration paperwork and pay the registration fee. In the eyes of the government you are now married. If you need to have some clergy person mutter some prayers over you, then you go do that, too. In some of Europe the two are completely independent acts. In other places you have to get the government document before seeing the voodoo priestess (or whoever). But as far as the government's concerned it is the filing that is key.

  27. "I took it for granted that most people understood that one needn’t get a license from the state to call themselves married."

    Sure, just like I don't need a license from some silly committee in Sweden to call myself a Nobel prize winner.

    Marriage isn't a private transaction between two people; it is a commitment that is recognized by the community. Thus a couple doesn't become married when one partner proposes marriage and the other accepts. They only become married after taking whatever steps the community requires in order for the community to recognize the relationship between the two individuals as a marriage. In California, as I understand it, the rule is that if you want to get married, you go to the clerk's office and get a marriage license. If the state won't grant you a license, then you aren't married.

  28. Warren, just to be clear: there are no benefits that California provides to married couples that it does not also provide to couples in a civil union. There is no substantive difference, so this lawsuit ultimately is about the name. (I don't doubt that if and when some state responds by doing away with marriage entirely, the courts will step in to stop that as well. There's a pedagogical purpose to this–it's meant to teach those who disagree a lesson.)

    Kenneth, that's just traditional nonsense, isn't it? I mean, it's paperwork you file with the state, just like a certificate of formation for a limited partnership, right? No one thinks that the filing of the certificate turns the limited partnership into "a commitment that is recognized by the community." I'm mystified by the insistence that marriage means what it's always meant, except for not meaning what it's always meant.

  29. Thomas, I did not understand that you were talking only about California when you said that anyone who likes to do so can call themselves "married". I still think you may be wrong technically, but so long as civil partnerships really are in every detail equal to marriage (about which I do not know) I would agree with you that those who are denied the word "marriage" should just appropriate it, or not, as they see fit. That said, I don't think the state should be in the business of discriminating among civil partnerships either in terms of refusing homosexual couples the right to use the word "married" or in refusing heterosexual couples the right to obtain a civil partnership. Even if all the tangibles are scrupulously balanced, separate is not equal. If the state reserves the word "married" for heterosexual couples, it is clear to me that the state is expressing its opinion that homosexual couples are in some way abnormal or deficient.

    And it's worth remembering that you're choosing to confine the debate to within California, which conveniently lets you ignore the inconvenient fact that most US states lack a civil partnership equal to marriage, with all the cruel injustices that lack inflicts on the lives of their citizens. So can I get you at least to say that, whatever you want to happen with the word "married", you want the substantial rights accorded to married couples to be equally the rights of loving, committed, informed and adult couples who happen not to be heterosexual?

  30. Warren,

    The California civil partnerships law creates a separate classification that is reserved for homosexuals. If you're straight, you get married. If you're homosexual, you get civil partnershipped. (Boy, there's an awkward term!)

    Thomas's claim that this is equal in every way is specious: separate is never equal. To begin with, civil partnerships have no, none, zero chance of being accepted by the IRS as qualifying the partners to file jointly. We can move on from there: in the State of California, domestic partners have the right to make medical decisions for each other. But what if the partners are involved in an auto accident in, say, Arizona. Or one partner has cancer and chooses to go to M.D. Anderson in Houston? Will Arizona or Texas accept the California civil partnership? If anyone answers anything but not very likely, the only person they're kidding is themselves.

    I'm married. If I'm in an auto accident in Arizona, there's no question that my wife will be allowed to make decisions for me in the event of my incapacitation. Brown v. Board of Education finally established what we all know, but Thomas is choosing to deny: separate is inherently unequal.

    Thomas made reference earlier to self-government, that this is an issue of whether the people of California can make decisions about their government. I see that as a false question. The real question is this: Are civil rights properly put up to a majority vote? The answer is, as it ever has been, no. Rights aren't rights if they are granted and taken away by majority vote.

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