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Tuesday, May 3, 2011

If You Can't Beat the Logic, Look for Bias

            Proponents of Proposition 8 — the 2008 ballot measure that overturned a California Supreme Court ruling in favor of gay marriage — have become the orphans of the legal system. Aside from the newspaper industry, it’s hard to imagine a group that’s had a rougher time of things the past few years.
            When the constitutionality of Proposition 8 was challenged in federal court, both the Republican Governor, Arnold Schwarzenegger, and the Democratic Attorney General, Jerry Brown, pronounced it a losing cause and declined to involve the state in its defense.
            Federal Judge Vaughn Walker, appointed by President Bush the First, presided over the trial last year, and in June 2010 issued a ruling overturning Proposition 8 in no uncertain terms. As the case winds its way through appeals, polls continue to show a growing support for gay marriage among Americans. Many leading Republicans now see the issue as a loser and are trying to change the subject.
            Last week the Proposition 8 legal team announced that it would file a motion to vacate Judge Walker’s ruling because they were shocked, shocked to discover that he’s gay (which, by the way, was rumored at the time of the trial) and, in their eyes at least, has a conflict of interest that biased his decision.
            Most legal experts quoted in the press seemed to think the motion was a legal non-starter, though one of the things that makes the law such a fascinating spectacle is that there’s no telling what a judge or jury might do. As a common-sense matter, Judge Walker’s sexual orientation, whatever it may be, puts him in a large enough class that he gains no particular individual benefit from his ruling, which is the essence of any conflict of interest claim.
            But that begs the larger question, at least for those of us who care about truth and basic justice: Is there anything in the ruling itself that suggests an evidence of bias?
            After the ruling came out last June, I went online and read all 150-plus pages of it from beginning to end. I came to it from the point of view that gay marriage is a just cause, but with some skepticism as to whether it could claim the status of a legal civil right.
 Judge Walker’s ruling, by the pellucid exposition of its meticulous legal argument and by the relentless and impeccable logic of its reasoning dispelled the skepticism. My reaction on finishing it was that it was so soundly, carefully and conservatively crafted that there was no way it could reasonably be reversed. If you don’t want to take my word for it, read the opinion yourself.
            (It should be noted in passing that the Proposition 8 legal team didn’t do much to help any appeals court that might hear the case. From all news accounts, they were given ample opportunity during the trial to present evidence as to why there is a compelling societal interest in forbidding or restricting gay marriage. They played it worse than the Chicago White Sox played the 1919 World Series and gave the next round of judges nothing to hang a reversal on.)
            It is possible, of course, that some higher court will perform some appallingly clumsy legal gymnastics to justify overturning Judge Walker. That sort of thing has happened before (see Bush v. Gore) and will certainly happen again. In that event it won’t be necessary to look into the personal lives of the justices who so ruled in order to ascertain their bias. The bias will be in the decision itself and there for all to see.