Prop 8 Supporters Getting Slimy and Desperate

Earlier I wrote about the sleazy and despicable effort of Proposition 8 supporters to have the District Court ruling in Perry v. Schwarzenegger thrown out because Judge Walker has confirmed that he is gay. I also commented on the very dangerous precedent such an action would have in terms of barring many judges from hearing cases where disgruntled litigants would then be open to direct personal attacks on the judge and try to show bias or some conflict of interest. Fortunately, many legal scholars are attacking the Prop. 8 defenders and their slimy legal counsel. One column in the Washington Post by Adam Serwer does a good job at looking at the dangerous direction such charges might lead to for the courts if such homophobic attacks were allowed to succeed. Here are highlights:
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Supporters of Prop 8 were dealt a blow last year when Judge Vaughn Walker ruled that there is no empirical basis for the notion that same-sex marriages harm heterosexual marriages and therefore no compelling interest in preventing gays and lesbians from getting married.
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Yesterday, same-sex marriage opponents filed a motion to have Walker’s ruling vacated, on the grounds that his being gay and in a long-term relationship amounts to a conflict of interest that should have forced him to recuse himself: Given that Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced), it is clear that his “impartiality might reasonably [have been] questioned” from the outset.
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This argument is too clever by half, and relies on the same faulty argument put forth originally in defense of Prop 8: The qualitative judgment that same-sex relationships are inferior. Opponents of same-sex marriage are arguing, in effect, that because Walker was in a long term same-sex relationship, he stood to benefit personally from Prop 8 being overturned.
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The problem is that this same logic could be applied to a straight, married judge hearing the case. After all, supporters of the same-sex marriage ban are arguing that marriage equality is so damaging to the institution of marriage that the government has a vital interest in making sure gays and lesbians can’t get married. That means that a straight, married judge couldn’t be expected to be impartial, either . . . Therefore, a heterosexual, married judge could be seen as having just as much “skin in the game” as Judge Walker.
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The notion that Walker’s ruling should be vacated is build on the flimsy assumption that gays and lesbians are different from heterosexuals in a manner that justifies denying them their fundamental rights. It’s also built on an unstated but core conservative view of the courts — that judicial “impartiality” is best defined as viewing the law through the cultural prism of a heterosexual, conservative white Christian judge. That’s partly why the impartiality Justice Sonya Sotomayor was viewed as suspect from the outset.
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The real problem faced by Prop 8 supporters real problem is that their case is profoundly weak, and relies almost entirely on archaic and rapidly eroding social prejudices against homosexuality.
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Conversely, Prop 8 opponents were able to demonstrate, in vivid detail, precisely how they were personally hurt by California’s decision to deny gays and lesbians their fundamental rights.
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Now Prop 8 supporters are reduced to arguing, essentially, that Walker’s ruling should be vacated because he is gay. Aside from the faulty legal reasoning, supporters of the law aren’t doing themselves any favors when it comes to convincing anyone that their position on marriage amounts to anything other than prejudice.