Thursday, April 14, 2011

Marriage Is A Benefit... Er, Sometimes...

Regarding (the now retired) Judge Vaughn Walker's ruling in California's federal Prop 8 case (Perry v. Schwarzenegger), in light of Walker's homosexuality, John C. Eastman* argues:

"Recusal is required by the code of judicial conduct if 'the judge's impartiality might reasonably be questioned,' such as when the judge knows that he 'has a financial ... or any other interest that could be affected substantially by the outcome of the proceeding.'

Not his sexual orientation, which alone would not require recusal, but the possibility that he could directly benefit from his ruling, raised the prospect that recusal may have been warranted. If the relationship [Walker was in] was such that it gave Walker a financial or other interest in the outcome of the proceeding -- and the ability to marry would certainly qualify -- recusal would be mandatory and non-waivable." (emphasis added)

Using this logic, no one at all would be able to rule on this issue, given that all of civilization directly benefits from a ban on same-sex marriage. /snark

But seriously, for one, I find this argumentation interesting insofar at it highlights the invisibile way that privilege operates and perpetuates itself. Although bans on same-sex marriage directly benefit heterosexuals by (a) lofting their marital relationships into a position of superiority relative to the relationships of same-sex couples and (b) doling state and federal benefits to such couples on LGB taxpayers' dimes, it has rarely if ever been seriously argued that heterosexual (or Catholic, Mormon, or Evangelical) judges recuse themselves from ruling on the legality of same-sex marriage bans.

Secondly, for some additional context, let's remember one of the closing arguments (PDF) made during the Prop 8 trial.

Ted Olson said: "[California] has rewritten its constitution in order to place [gays and lesbians] into a special disfavored category where their most intimate personal relationships are not valid, not recognized, and second rate. Their state has recognized them as unworthy of marriage, different and less respected."

Here, Olson was observing how Prop 8 took away same-sex couples' right to obtain marriage licenses and re-relegated them, instead, to domestic partnerships- a status that grants almost all of the state-level benefits and obligations of marriage.

Yet, in their 9th Circuit reply brief (PDF), Team Anti-Equality argued that partly because domestic partnerships confer many of the state-level benefits of marriage on same-sex couples, domestic partnerships "bear no resemblance to the 'separate-and-inherently-unequal' system of racially segregated education struck down in Brown v. Board of Education. And so, because marriage and domestic partnerships are almost the same thing and confer almost the same benefits, same-sex couples aren't actually harmed by being channeled into domestic partnerships.

(You know, other than not receiving all of those important federal benefits. Ho hum, thanks DOMA!)

So, what does Eastman's argument mean in the context of the larger Prop 8 case?

Well, if folks are going to go down this road of arguing that Walker's ruling be vacated because, as a gay man, he's likely to receive a "financial or other interest" due to the outcome of a case that is, in part, addressing the issue of whether gays would receive a "financial or other interest" from the institution of marriage, I daresay Team Anti-Gay is shooting themselves in the foot with this new contrived grievance.

*Fun fact: John Eastman, ironically, wrote an article about a gay judge's alleged "financial or other interest" in a same-sex marriage case while not disclosing his own "financial or other interest" with the National Organization for [Heterosexual] Marriage.

Related: Judge Walker's sexual orientation is a non-issue

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