Wanted: asexual jurists

Latest desperation move by opponents of same-sex marriage: attack the judge who found Proposition (h)8 unconstitutional for having a same-sex partner. But on the theory that gay marriage is bad for straights, what sort of judge *wouldn’t* have had a conflict of interest?

[See update below]

It turns out that the judge who declared Proposition (h)8 unconstitutional has a long-time same-sex partner. The h(8)ers – who knew this all along*, since Judge Walker made no secret of it, but didn’t raise any protest during the hearings – are outraged. This was an obvious conflict of interest!  Judge Walker should have recused himself!

But according to their theory, same-sex marriage would damage the institution of (opposite-sex) marriage. Therefore, any married jurist would also have had a conflict of interest. So would any unmarried straight jurist, who might, after all, want to get married in the future, just as Judge Walker might.  Even a completely celibate judge would have had a conflict of interest due in protecting the marriages of his or her friends and relatives.

So it would appear that Protect Marriage wants the case heard by Martians, or perhaps by members of some species that reproduces asexually. Fine with me. But would it be possible to find a Martian judge, or a paramecium, capable of grasping the existence of people whose joy in life consists of denying marital rights to others?

*Update Turns out that the Prop. 8 proponents don’t deny having learned of reports that Judge Walker was gay, although he’s only now commenting about that on the record. What they claim as new information is that he’s in a committed relationship. That, they say, gives him a conflict of interest that another gay judge might not have had, since he and his partner might want to get married.

In other words, they’re not really asking for a Martian or a paramecium. According to their logic – though they don’t quite come out and say it – they would accept any straight judge, or a gay judge who was either celibate or promiscuous. It’s only a gay judge who wishes to conform to the socially-approved pattern of pairwise mating who can’t properly hear this case.

You can see their point, of course. If you’re committed to the notion that gay people are inherently promiscuous, the sort of sneaky gay person who refuses to conform to your prejudices is especially dangerous.

Still no explanation why the threat to a straight married judge’s own home life posed by the acceptance of same-sex marriage – which is after all, the entire purported basis for the ban – wouldn’t give that judge an equally strong conflict of interest.

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

23 thoughts on “Wanted: asexual jurists”

  1. Look, I don’t agree with them either.

    But I don’t think it’s fair to say they get “joy” from what they do. They are literalists and fundamentalists. As crazy as it may sound, they probably don’t see their actions against others as being “personal” at all. And I don’t know many such, but from what I’ve seen, that type of personality does not tend to be very happy. I think they must always be in fear that they too are violating one of the many, perhaps numberless, ironclad rules that determine whether or not God likes them. It seems to me not unlike the condition of OCD, which I think is very un-fun.

    Also, it sounds like they’re getting desperate. Also un-fun. I’m just saying.

  2. Mark, do you have reference to back up the “(they) knew this all along” statement? The article claims they very well should have known, if they were competent.

    1. See update. The motion concedes that there had been discussion of the judge’s sexual orientation; the claimed new fact is his committed partnership.

  3. Mobius, the story says that the judge’s orientation was not only widely known but had been written about in the press, including the LAT. Hard to imagine that the opponents wouldn’t have known.

  4. Interestingly, Prop 8’s defenders did request that Judge Reinhardt recuse himself from considering the case’s appeal on the 9th Circuit b/c his wife was the Executive Director of the ACLU of Southern California. Reinhardt denied the request (see his well-reasoned memo here: http://www.ca9.uscourts.gov/datastore/general/2011/01/04/1016696memo.pdf). I’m guessing the attorneys did not request Judge Walker’s recusal for three reasons: 1) they recognized the argument was absurd (see Mark’s argument above), 2) they recognized it was unlikely to succeed (see Reinhardt’s memo and every other time a federal judge refuses to recuse where they have REAL conflicts), and 3) asking and failing to get Walker to recuse is a great way to get off on the wrong foot with your trial judge.

  5. I was looking for something saying more than ‘everybody knew’. I can imagine the opponents not knowing, because they might have tried hard to not know. Or were just lame.

    I can also imagine they knew, but didn’t let on so they would have an ace in the hole for the appeals circuit.

  6. Though I figure a good lawyer would want to know as much as possible about the judge – Baseball player keep books on Umpire tendencies, so a good lawyer must as well.

    But the prop 8 lawyers did not exactly brighten the courtroom it appears.

  7. Ahh, I missed the link to the new story. I thought this post was just Prop 8 supporters in general getting angry over Walker… surprised the Prop 8 attorneys took this up.

  8. Excellent–I’m really looking forward to hearing the Prop 8 proponents explain that the case ought to be decided by someone not in a committed same-sex relationship, who wouldn’t really be affected whether gay marriage were legal or not.

  9. This thought-experiment combined with an experiment-in-real-life nicely demonstrates how the patriarchy tries to enforce itself. Marriage equality threatens gender oppression. That’s the real reason it’s opposed by the “religious” right. The reason has nothing to do with God.

  10. Of course they would have preferred a polygamist judge, although the reasoning would indeed have been Martian.

  11. I’m with Buck. An asexual jurist really wouldn’t do, because they might still at some future date want to contract a permanent relationship that would give them an unfair person interest in the case. It think you need a bisexual polygamist already in a committed relationship with at least two men and two women, so that no possible ruling could change the status of their personal arrangements.

  12. There’s a logical fallacy underlying this post.

    A homosexual in a committed relationship has something to gain from ruling Prop 8 unconstitutional -> they can get marriage benefits. Both sides of the legal case would agree on this point.

    A heterosexual jurist may or may not suffer from ruling Prop 8 unconstitutional. This point is central to what is at stake in the case. Are the opponents of Prop 8 prepared to concede that heterosexuals will suffer from gay marriage.

    If they are not, then the relativist idea that a heterosexual jurist would have to recuse themself the same as a homosexual is unsupported.

  13. David, you’re right. All homosexuals should recuse themselves, and only those heterosexuals who feel that gay marriage is a threat to straight marriage need recuse themselves.

  14. Except that’s not what I said, or a logical conclusion of what I said, Allen. I realize that you may be of the opinion it is a logical conclusion of what I said, but in that case the obligation would be on you to explain your reasoning so that it can be analyzed. Unless you just want to put words in other peoples’ mouths, which is fine, but if that’s your objective let’s just be a little more upfront about it.

  15. David, that logical fallacy that exists only between your ears.

    It’s Prop 8 proponents who want the judge out AND who claim heterosexuals will be harmed by gay marriage.

    What the opponents of Prop 8 do or don’t concede is irrelevant.

  16. “What [they] don’t concede is irrelevant”

    Does anybody here like to explain their reasoning?

  17. By David’s reasoning, no judge who breathes could rule on cases involving the Clean Air Act, and no judge who eats or receives medical care could rule on anything about the FDA. And only judges who live off the land could decide cases that involve the enforcement of contracts…

  18. David –

    There is a logical fallacy underlying your logical fallacy.

    The advocates for Proposition 8 (‘Group A’) claim there will be real damages done to the institution of heterosexual marriage if in California it is expanded to include same sex coupling. The advocates for repeal (‘Group B’) argue, in contrast, that no such damage will occur.

    In regards to the controversy above, it is Group A that is making dispositive claims that a jurist’s relationship status constitutes prima facie grounds for their recusal. Group B is making no such claims.

    At the most fundamental, your “logical” proposition proposes in essence that Group B must accept at face value the claims made by Group A, an ‘argument’ in whose genesis was the goal of refuting the truth of Group B’s claims. Then you turn around and say see, by accepting the terms Group A’s argument Group B’s claims are proven as a logical fallacy. As should be obvious, Group B is not accepting the terms of Group A’s proposition. In fact, I am going to step out on a limb and hypothesize they would claim that this entire line of reasoning is spurious. This would not be the case if Judge Walker had a documented history public advocacy on one side of this issue or the other. But there is no such evidence that I am aware of. Rather

    Professor Kleiman has pointed out what should be obvious: treated as an intellectual exercise if we accept Group A’s proposition at face value as a logical construct, then contrary to their limited claims, the subset of citizens without any potential ‘skin in the game’ is winnowed down to a pretty shallow pool of candidates. This concedes no level of truth to the proposition being examined.

    I do not believe that it is an error to point out that if your opponents “logical” construct is taken to it’s conclusions, the premise is exposed as having as much substance (in this case legal) as gossamer. Rather the technique of ‘reductio ad absurdum’ has a long-standing history within our Western rhetorical/philosophical history. Using this methodology to expose the fallacy of your opponents arguments – and this is the important part – does not constitute acceptance of the terms of the argued-against proposition. In fact, definitionally the opposite case is most often true.

    I’m by no means trained formal logic, but I’d bet money there is a name for the error in reasoning outlined above.

  19. worn –

    I like your designation of Group A and Group B; it is an effective short hand.

    Really well explicated on the ‘reductio ad absurdum’ point, too. I appreciate it; what you have written definitely moves the conversation forward.

    It’ll be interesting to see what you think of this:

    [1] It is the position of Group B that overturning Prop 8 will provide benefits to homosexuals in committed relationships, but will not have an impact on any other classes of individuals.

    [2] Group A is now petitioning to overturn the ruling of a judge who belongs to the relatively narrow class that Group B is arguing has an interest in the case.

    [3] How does Group B object to [2] without undermining their argument in [1]? Note that the focal point of [1] as constructed here is the position of Group B, rather than Group A.

    I am neither a lawyer nor trained in formal logic, however it would appear that both sides of the argument are fallacious.

  20. David: Group B objects with a simple “—- you and the horse you rode in on”, just as members of other discriminated-against minority groups have objected to bad-faith claims that judges of their group must recuse themselves from civil rights cases in the past.

    As you’ve been told before, your argument fails because it proves too much. Substitute civil rights for blacks, women, non-property-owners, individuals of foreign descent and so forth in there, and you get the same result. (Or, as you appear to have missed my point in discussing, issues that we think about as so firmly established and so universally important that there’s no question about trying to shoehorn the deciding judge into a benefiting or non-benefiting group.)

    What you’re missing, among other things, is that group A cannot simultaneously accept the notion (whoever first advances it) that people in committed same-sex relationships are the only ones with an interest in the case and claim that group A had standing to file in the first place. Either a larger group is affected in a judicially cognizable way (and the objection to Walker leads to the absurd results we’ve discussed) or else the effect is limited to a smallish class of which no one in Group A is a member, and they should apologize to the court for having attempted to bring a case without standing.

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