Only robots may judge them

Is there anything sillier than the anti-gay camp trying to get their utter embarrassing defeat in court – when they could provide no rational argument against marriage equality at all – overturned on the grounds that the judge is apparently gay?

Today, a court in San Francisco heard arguments about one of the most contemptible legal claims advanced in decades: that Vaughn Walker, the federal judge who voted last spring to strike down California’s ban on gay marriage, was too gay to decide the case fairly…

They don’t say that Walker, who retired from the federal bench last February following his Prop 8 ruling, is biased in favor of gay marriage because he is gay. Instead ProtectMarriage argues—see this April 25 motion to vacate Walker’s ruling—that Walker, who has lived with his partner for 10 years, may have ruled for gay marriage so that he himself could get married and someday enjoy the benefits of marriage.

What they’ve failed to notice, there, is that their entire argument is that marriage equality affects them, as straight Christians, and therefore precisely the same objection could be made of any straight Christian judge. It either affects everyone or it doesn’t; if it affects them, then their preferred option is also “biased” – if it doesn’t, then they should have no standing to bring their case.

Seriously, these are not rational people. How long are we going to pander to their nasty stupidity?

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24 responses to “Only robots may judge them

  1. Splatterbottom

    “What they’ve failed to notice, there, is that their entire argument is that marriage equality affects them, as straight Christians, and therefore precisely the same objection could be made of any straight Christian judge.”

    This is clearly nonsense. It is nonsense that the decision affects straights and nonsense that there is any appearance of bias in a straight judge hearing the matter.

    On the other hand there is the appearance of bias when a judge, by his own decision, gains rights he did not have previously.

    This is about the appearance of bias, and it would be better if some more apparently disinterested judge tried this case.

  2. If you had read further into the article SB than Jeremy’s summary of it, you would have seen that there is extraordinary amounts of precedent in the US that such arguments are bunk: “No claim that a federal judge should have been barred from hearing a case because of race, gender, or religion has ever succeeded”.

    Further in the article it was noted that black and women judges in the 1960’s and 1970’s were regularly being targeted by bigots over civil rights – “they have something to gain, so therefore they are biased”. That nonsense was shot down. As the article points out, a white judge could be considered just as biased in a case involving race, or a man in a case involving gender equality. Because arguably (at least according to bigots) they have their special position in society to lose. As Jeremy said, by that argument no human judge has standing to hear any equality-related case. Only robot judges.

    The problem for the anti-gay crowd in this case is that they are yet to advance *any* argument as to why gay people getting married directly harms straight people, as they claim. It wouldn’t matter if the judge was straight, gay, bi, or celibate. The sexual orientation of the judge is irrelevant if no evidence supporting the claim can be presented. In reality, what the anti-gay crowd are complaining about is that the judge was *not* biased in favour of their evidence-free propaganda.

  3. jordanrastrick

    It is nonsense that the decision affects straights and nonsense that there is any appearance of bias in a straight judge hearing the matter.

    What if its a straight judge who feels their own heterosexual marriage is diminshed by the legal recognition of same sex marriage? This is the position taken by all coherent anti-gay marriage activists I have seen. Surely judges with such beliefs stand to gain by trying such a case.

    On the other hand there is the appearance of bias when a judge, by his own decision, gains rights he did not have previously.

    In the abstract? So if a judge without a whole lot of money in the bank rules that criminal defendents have a right to a state appointed lawyer if they cannot afford their own counsel, in theory his or her potential need to recourse to legal aid at some point in the future, maybe, would be grounds to recuse themselves? I mean, they’ve just granted themselves a right they didn’t previously have, that there is some grounds to believe they might possibly anticipate making use of.

    Appearance of bias to certain observers does not always equate to the legal reality of bias.

    Fortunately, U.S. courts seem to have a strong track record of disagreeing with this kind of reasoning when historically applied to various other minorities.

  4. The legal establishment in the US has been quite clear since this motion was filed that the “bias ploy” was an act of desperation, unsupported by precedent, and ultimately doomed to fail. The contention that a judge who shares an identity attribute with a party in a matter brought before them has an inherent (non-financial) bias and should recuse themselves ignores the precepts and weight of the judicial oath, and would establish dangerous anti-minority precedents in the US judicial system.

    Judge Ware’s questioning of Cooper (ProtectMarriage) drew the similarity of the gender comparison (can a female judge hear a rape case, and if she has been raped is she required to disclose and recuse herself), and the race comparison (can a black judge hear a civil rights case), alongside sexual orientation to illustrate the weakness of the alleged bias put forward by Protect Marriage.

    There is no evidence that Walker and his long term partner intend to marry and therefore are directly affected by the outcome of the case. In fact, Judge Walker and his partner could have married when equal marriage was available to everyone in California, but did not. In that light, the allegation of his desire the marry and resulting bias was very weak tea, indeed. SplatterBottom’s argument that Walker “gains rights he didn’t have previously” is demonstrably false as he already had the right for several months while equal marriage was legal.

    The fundamental contention of ProtectMarriage in the Prop8 case was that marriage equality has consequences for straight couples, and that the institution of marriage would be irreparably damaged by permitting same-sex couples access to it. If that was not their argument, there was no case for a compelling state interest in restricting marriage to opposite-sex couples only. It’s been most amusing watching ProtectMarriage tie themselves in logical knots as this case has progressed through the courts.

  5. returnedman

    Their argument is just so gay.

  6. Splatterbottom

    Unique: “In reality, what the anti-gay crowd are complaining about is that the judge was *not* biased in favour of their evidence-free propaganda.”

    Really? Are you that stupid?

    Jordan: “This is the position taken by all coherent anti-gay marriage activists I have seen.”

    There is no such thing as a coherent anti-gay marriage argument. If you believe there is such an argument consistent with the concepts of individual liberty and equality before the law could you let us know what it is?

    “Appearance of bias to certain observers does not always equate to the legal reality of bias.”

    The legal conception of judicial bias is the appearance of bias. Actual or real bias is irrelevant.

    Brian: “SplatterBottom’s argument that Walker “gains rights he didn’t have previously” is demonstrably false as he already had the right for several months while equal marriage was legal.”

    I am happy enough to admit that this case is close to the line when it comes to perceptions of bias, and reasonable people may differ. However, nonsensical arguments such as this do not help matters. The fact is that absent the decision in which Vaughan participated, the ban would have stood.

  7. jordanrastrick

    There is no such thing as a coherent anti-gay marriage argument. If you believe there is such an argument consistent with the concepts of individual liberty and equality before the law could you let us know what it is?

    I meant coherent in the sense of “internally self-consistent”, not that it properly respects these other values.

    The legal conception of judicial bias is the appearance of bias. Actual or real bias is irrelevant.

    Its weaker than “actual or real bias” but stronger than “the appearance of bias” – that bias is apparent to at least one observer is not sufficient.

  8. SB, the only way ProtectMarriage would have gotten their way was if the judge brought their religion into the courtroom and ruled based on evidence not presented; i.e. be actually biased. ProtectMarriage wanted the judge to be biased – in their favour – because they had no evidence to support the contention that gay marriage is an unacceptable “Threat to Traditional Marriage”. If it was such a huge threat, then the months during which gay marriage was legal in California should have furnished hundreds of examples of this “threat” to be presented as evidence.

  9. Splatterbottom

    Jordan: “Its weaker than “actual or real bias” but stronger than “the appearance of bias” – that bias is apparent to at least one observer is not sufficient.”

    The judicial concept is ‘apprehension of bias’, as decided by the court taking the position of a reasonable person. It goes without saying that the views of fanatics are excluded. However, I think the issue is genuinely raised when a judge appears to gain from the decision particular rights that he did not previously enjoy.

    Unique I agree that the law should be viewed as unconstitutional, and the decision given is exactly what would be expected of a court of law, and that any court deciding differently would likely be relying on irrelevant considerations. However, that is a different question to that of apprehended bias.

  10. It is nonsense that the decision affects straights and nonsense that there is any appearance of bias in a straight judge hearing the matter.

    Well, it may be nonsense to you, although you haven’t even attempted to explain why. Ironically, the proposition that the decision “does not affect straights” is not nonsense to the people trying to get Vaughan disqualified; if it didn’t affect them (in their minds), they wouldn’t be opposing it. They contend that straight marriage is somehow weakened or lessened by the legalisation of gay marriage, so according to their own reasoning and position a straight person does have as much of an interest in the outcome as a gay person. Straight people are going to lose out if gay marriage is legalised. That’s their argument. Only a diehard partisan would pretend not to understand Jeremy’s (well-made) point here.

  11. Splatterbottom

    Buns: “Well, it may be nonsense to you” and, I would have thought, nonsense to you. Let me know if this is not the case.

    You are playing the man here – pointing out the hypocrisy of the proponents of an argument doesn’t refute the argument. This is illogical, but somehow typical of fanatics who lose sight of the real issue for the sake of scoring a few cheap points.

  12. You are playing the man here – pointing out the hypocrisy of the proponents of an argument doesn’t refute the argument.

    Not playing the man at all. The argument defeats itself – by the proponents’ own logic, all people have an interest in the outcome and therefore nobody can hear the case. They can’t have it both ways: either everyone is biased, or nobody is. Unless they concede – as I’m sure they wouldn’t – that everyone is too biased to hear the case, whether straight or gay, their argument has to be rejected.

  13. narcoticmusing

    Gay Judge – biased due to possible benefit gain. Straight judge – biased due to possible detriment avoided. Either way, they will be biased by the logic presented by the parties claiming bias.

    SB, I completely disagree with your proposition that a judge is biased due to possibly ‘gaining rights’. Your definition would immediately exclude any minority group or oppressed group from serving on the bench. For example, your logic would exclude black judges (or any other victimised group) or women from ruling on discrimination cases. How is this consistent with the concepts of individual liberty and equality before the law?

    I am hoping your rationale behind your argument is more about keeping up appearances (not you, but the decision). Ergo, that it is better for the case if it is seen to not be biased or else the decision will always be questioned and undermined. Opponents will latch onto the perceived bias to justify acts against it. This is the whole, it is better for the man to agree with the woman rather than the woman agree with the woman. It is patronising in the extreme, as if being born a certain way means you can not be objective.

  14. @SplatterBottom said:
    “I am happy enough to admit that this case is close to the line when it comes to perceptions of bias, and reasonable people may differ. However, nonsensical arguments such as this do not help matters. The fact is that absent the decision in which Vaughan participated, the ban would have stood.”

    I rebutted your argument that Judge Walker had the appearance of bias because he “gains rights he didn’t have previously” by pointing out that he, and every other gay and lesbian Californian, had those rights between June 16th and November 5th 2008. Your statement is demonstrably false based on the record. If it was his secret intent to marry the man he loves, he could have done so in 2008. Hypothetical mind-reading, or speculative hearsay as it would be more properly termed, doesn’t stand against the known facts. Declaring an argument as “nonsensical” when it is proven true is intellectually dishonest.

  15. Splatterbottom

    Buns: “The argument defeats itself – by the proponents’ own logic”

    There are few things more ridiculous than a tumescent leftist so eager to ram home his point that his ability to reason goes spraying out the window. You know that the proponent’s “own logic” is false. Relying on a false assumption does to invalidate an argument is not at all logical. Even you must understand this.

    Narcotic: “I am hoping your rationale behind your argument is more about keeping up appearances (not you, but the decision).”

    The rationale behind the apprehended bias rule is precisely that of “keeping up appearances”. The system of justice is more effective if it is seen to have integrity. You may think this is patronising, but most legal scholars believe it is common sense and an essential component of a just legal system.

    Brian: “I rebutted your argument that Judge Walker had the appearance of bias because he “gains rights he didn’t have previously” by pointing out that he, and every other gay and lesbian Californian, had those rights between June 16th and November 5th 2008. Your statement is demonstrably false based on the record.”

    Your “rebuttal” is nonsense. It assumes that because a couple did not get married in a particular period of six months one of them would never thereafter want the right to marry.

  16. SB
    It is nonsense that the decision affects straights and nonsense that there is any appearance of bias in a straight judge hearing the matter.

    Would it be mean-spirited to use the line “methinks the lady doth protest too much”?

    SB
    Actual or real bias is irrelevant.

    Screw it, you’re DEMANDING ridicule.

    SB
    …and it would be better if some more apparently disinterested judge tried this case.

    My kelpie isn’t married – and he has no discernable plan to marry (now or ever). I struggle to think of anyone so singularly disinterested as he.
    I hereby nominate Keiko the kelpie to rule on all same-sex (and other-sex) marriages from now on.

    (awaits SBs accusation of my dog being a homo)

  17. Splatterbottom

    Lykurgus I hadn’t figured you for a doggy lover, but there you go. No doubt Keiko is a right woolly woof-ter.

    Also, you know what I meant about actual bias being irrelevant. The test is whether the circumstances are such as to cause a reasonable person to have an apprehension of bias. The fact that a person is not actually biased is irrelevant. This is a good rule because it helps ensure that justice is seen to be done, and because proving actual bias would be quite difficult.

  18. The test is whether the circumstances are such as to cause a reasonable person to have an apprehension of bias.

    SB’s correct: we’ve asked a judge to rule on whether or not he should be given a ‘right’ that he is currently denied: there is an obvious conflict of interest here and denying it is irrational.

    But the fact that the conflict exists merely highlights what a ridiculous situation we’ve put ourselves in: our democracy trusts this individual sufficiently to appoint him as a judge (one of the most prestigious positions achievable) but not enough to allow him to marry his life partner.

    It’s utterly ludicrous when you really think about it.

    I would argue that this is a conflict of interest, but that it’s an acceptable conflict. Because to take the view that judges can never rule on cases where they could indirectly benefit from the outcome would be to argue that female judges can’t decide on cases that impact women’s rights, or that black judges can’t decide cases that impact racial equality laws.

    Or that rich white judges can’t decide cases that have the potential to impact the amount of income tax they are forced to pay.

  19. jordanrastrick

    I would argue that this is a conflict of interest, but that it’s an acceptable conflict.

    Precisely. Any judge deciding on any case potentially sets a precedent that affects their own rights. Its far broader than just minorities. Does a judge who is a member of some small political party like the LDP, who finds that it is unconstitutional for the government to ban say Sharia Law party, have an unacceptable conflict of interest? She is not only establishing her own generic right to be a member of a party, there are actually specific grounds to believe this is a right of hers that she exercise and may potentially come under direct threat in the future, should the next government run on an anti-libertarian platform instead of an anti-Islam one. Nonetheless, the conflict is clearly not so great as to disqualify her from adjudicating ther case.

    The test is whether the circumstances are such as to cause a reasonable person to have an apprehension of bias.

    I guess the only point of disagreement then is whether we think a reasonable person would have an apprehension of bias here. I don’t think apprehended bias, in this case, would be reasonable. However, I will admit that “I am happy enough to admit that this case is close to the line when it comes to perceptions of bias, and reasonable people may differ.” I just think its on the other side of the reasonability line.

  20. Lykurgus I hadn’t figured you for a doggy lover, but there you go. No doubt Keiko is a right woolly woof-ter.

    http://en.wikipedia.org/wiki/Psychological_projection

    People with profile-pics like yours shouldn’t throw gay jokes

  21. Splatterbottom

    Why not? Everyone loves a good joke, and the profile pic works a treat on Grindr.

  22. @Splatterbottom: Me:“I rebutted your argument that Judge Walker had the appearance of bias because he “gains rights he didn’t have previously” by pointing out that he, and every other gay and lesbian Californian, had those rights between June 16th and November 5th 2008. Your statement is demonstrably false based on the record.”

    You: “Your “rebuttal” is nonsense. It assumes that because a couple did not get married in a particular period of six months one of them would never thereafter want the right to marry.”

    I wasn’t arguing that he would never want to marry, that would be engaging in the same speculative mind-reading that both you and Protect Marriage attempted. I am focused on the observable facts. You asserted that in making the ruling against Prop 8 Judge Walker would “gain rights he didn’t have previously”. That is a lie as Judge Walker had those rights in 2008 and could have married at that time if he’d wanted to. It is not speculation, it is fact.

    You are right that there is nothing to say he may not desire to marry in the future, however, we have observable proof that he at least wasn’t ready to marry in 2008. When someone makes the case that Walker will benefit from his own ruling and attempts to say he wants to marry in the future, there is no evidence or foundation for that speculation and there is some evidence to the contrary.

    We all know the “similarly situated” argument was a fig leaf for Walker’s identification as a gay man. If he wasn’t in a long term relationship the fig leaf would have changed, but it would have been the same issue.

    Simply calling an argument “nonsense” (something you seem to do a great deal) doesn’t make it so. The ultimate proof is that the court has ruled and the allegations of bias you put forward have been deemed unfounded. Rage, splutter, obfuscate, pivot from argument to argument at speed to avoid honest debate as one may, at the end of the day the motion has been ruled on and it’s time to grieve and move on.

  23. Simply calling an argument “nonsense” (something you seem to do a great deal) doesn’t make it so.

    Expressing views on hot, greasy man-sex is something he does a lot of as well.

  24. Splatterbottom

    Brian: “Rage, splutter, obfuscate, pivot from argument to argument at speed to avoid honest debate as one may, at the end of the day the motion has been ruled on and it’s time to grieve and move on”

    As noted above I have no problem with the decision, which is the only rational decision, both on the law and on the merits. Clearly your ability to read is as slight as your ability to reason.

    “You are right that there is nothing to say he may not desire to marry in the future, however, we have observable proof that he at least wasn’t ready to marry in 2008. “

    Sadly, that is not relevant to the proposition I put. You fail to understand the difference between the existence of a right and the exercise of it. Walker had rights after the judgment that he did not have before it. The fact that he once had those same rights and that they were subsequently taken from him supports my point rather than contradicts it.

    Lykurgis I have consistently supported marriage equality. Here is an earlier comment I made on the subject:

    This is totally perverse. And totally in line with the John Howard political playbook – play dirty, play hard, win at all costs, and don’t worry who you damage or how badly.

    All that is required is a simple thing, a little thing, the decent thing to do and all of a sudden it is satanic panic in the corridors of power. Irrational fear and loathing as though it is the end of the world as we know it.

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