According to a motion just filed by the anti-equality group "Protect Marriage," a person who is in a same-sex relationship may not be a judge in a same-sex marriage case.
The group, which led the Prop 8 campaign in California, is asking the US District Court to vacate Judge Walker's pro-equality ruling in Perry v. Schwarzenegger because Walker recently admitted to being in a 10-year committed relationship with a man. Their main contention is that Walker's impartiality is questionable since he allegedly has an interest in the outcome of the proceeding, which would potentially allow him marry his same-sex partner.
And, following that logic, no member of a racial minority group can judge an affirmative action case, because he or she might potentially benefit from the ruling (take note, Justices Sotomayor and Thomas). No fertile woman can judge an abortion case, because she has an interest in the outcome of the case. No man who is, or might one day be, a father can rule on father's custodial rights and child support in divorce proceedings.
In fact, no member of a group alleging discrimination can be impartial about deciding whether a law is discriminatory or not. Our legal system must instead rely on the totally objective, impartial, and unbiased legal reasoning of societal ingroups to recognize unconstitutional laws.
Of course, Team Anti-Equality isn't framing their motion as the gay-baiting bigotry that it is. Their motion insists:
"It is important to emphasize at the outset that we are not suggesting that a gay or lesbian judge could not sit on this case."
And what it's important to emphasize is that what they're actually doing is suggesting that a person in a same-sex relationship could not sit on this case. See, it's not so much the judge's being gay that they see as the problem, it's his exhibiting that gay tendency of being in a gay relationship that's the problem.
Same dif.
This new Prop 8 drama comes on the heels of Team Anti-Gay's desperate attempt to forever conceal footage of the Prop 8 trial. On the one hand, they can't stop telling us how biased the gay Judge Walker was during the trial, but then, of course, they don't want folks to actually see videotapes of the trial and make that determination for themselves.
This is what I like to refer to as the OOGEDY BOOGEDY Strategy of Marriage Defense.
Team Anti-Gay lobbed a piss-poor case in trial court, acting a bit too overconfident that their one-man, one-woman model of marriage was a self-evident truth to all people, and now they're blaming the results of their lackluster performance on a bad call by a biased umpire.
Accordingly, both Prop 8 motions are the latest in a disturbing trend of anti-equality groups bullying and defaming judges who issue pro-equality opinions. I am confident that many Americans will be repulsed by this latest PR strategy against Walker. It reeks of the same unsuccessful gay-baiting that was used against Justice Kagan during her confirmation process and that will likely resurface once the Prop 8 case reaches a US Supreme Court that is inhabited by two unmarried women, one of whom is supposedly good at softball. (Which, by the way, I looked at that photo of her swinging the bat and I thought her technique looked a little iffy, but I digress).
My point is that when marriage "defenders" lose on the substantive arguments, they blame everyone and everything but the inadequacy of their own arguments.
For instance, in Iowa, Bob Vander Plaats of (the mis-named) "Iowa For Freedom" successfully led a campaign to remove three state Supreme Court judges who declared unconstitutional a law barring same-sex marriage. Iowa Republicans are now trying to impeach the remaining justices for alleged "malfeasance of office."
It's not often that the substantive arguments and points within pro-equality opinions are addressed in mainstream narratives, let alone demolished. If you strip away the blustering soundbites (NOM NOM NOM) about Tyrannical Activist Judges, you often find that these criticisms, at their core, basically amount to nothing more than "I don't like it that judges can overturn The Will Of the People To Discriminate."
It's a bizarre, but catchy, position Team Anti-Gay continually takes. It's as though the ultimate goal is to convince Americans that same-sex marriage is resulting in total chaos, doom, and anarchy.
I can't think of one recent pro-equality court decision in which the judges were not widely lambasted as activist, tyrannical, biased, and/or improper by major anti-gay forces. Yet, contrary to their teeth-gnashing about how sucky judicial review is, it's not actually judicial review that these people hate. It's the use of judicial review when it produces outcomes favorable to LGBT equality that they hate.
Related:
Marriage Is a Benefit... Er, Sometimes
Judge Walker's Sexual Orientation Is A Non-Issue
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