Thursday, April 28, 2011

Prop 8 Drama: Quote of the Day

Regarding the Prop 8 supporters' motion to vacate the Perry v. Schwarzenegger decision on the grounds that Judge Walker is in a same-sex relationship, Pema Levy observes:

"The judicial bench -- traditionally a bastion of privilege and racial homogeneity -- has never been as diverse as it is today. That is, of course, a good thing. But it may signal that minority judges are vulnerable to ethical challenges....

If Walker's decision is vacated, this situation may well give rise to a new species of ethical conflicts. While the motion to vacate Walker's ruling is certainly offensive in parts, by using Liljeberg and other similar rulings to demonstrate Walker's conflict of interest, Prop. 8 opponents are essentially arguing that an interest in full equality is the same thing as a financial interest....

The motion against Walker is in unchartered territory, so it's unclear if a judge will find it convincing. But the sentiment behind it highlights the sad truth that judges are usually members of a group -- namely straight, white, heterosexual men -- who enjoy more privileges under the law and whose impartiality is never questioned. 'Typical cases affect groups that judges aren't members of, such as criminals or people on welfare,' Hellman says. 'There aren't many laws challenging a middle-class way of life.'"

Indeed, if this motion is successful it will set a precedent for requiring the recusal of minority judges in cases ascertaining whether that minority group is unconstitutionally discriminated against.

And regarding the contention that a gay judge in a same-sex relationship has "an interest" in the same-sex marriage issue, well, logically, of course minorities have an interest in no longer being discriminated against. That's sort of the nature of discrimination and oppression, derp. But then, so too do majority groups have an interest in perpetuating that discrinination.

Unfortunately, and owing to the invisible nature of that privilege, it is only non-heterosexual, non-white, and non-male judges who continually have to go out of their way to assure everyone that they are not beholden to "special interest groups." White male heterosexuals never have to assure us that they are not beholden to the special interest group of straight white guys.

That being said, many constitutitional law scholars (who aren't, like, affiliated with Liberty University) believe the chances of this motion succeeding are slim. For instance, UC Irvine School of Law Dean Erwin Chemerinsky has said that the motion "has no chance of success" and that he "know[s] of no instance in which a judge has been disqualified because of his or her race, religion, sexual orientation, or gender."

DePaul University School of Law's Jeffrey Shaman, who authored a textbook on judicial conduct, suggests that the Protect Marriage legal team might be "worried about the judge's opinion, which was such a strong opinion, and they are trying to make an end run around it."

We'll see what happens. Honestly, you really never know how a case is going to turn out. BiAsEd JuDgEs notwithstanding, natch.


American Foundation for Equal Rights: "Prop 8 Propoonents Desperate Plea Backfire in the Media"

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