June 13, 2011

(Same) Sex, Lies, and Videotape

Shockingly, AP has chosen to trivialize today's hearing seeking to overturn former federal Chief Judge Vaughn R. Walker's ruling that declared California's definition of marriage as traditional marriage unconstitutional. The defendants are asking Chief Judge James Ware to rule that Walker should have recused himself from the case because of conflict of interest.

In the case, Perry v. Schwarzenegger, two same-sex couple plaintiffs -- Kristin M. Perry and Sandra Steir, and Paul Katami and Jeffrey Zarrillo -- sued to overturn the voter-approved, citizen's constitutional amendment Proposion 8. Prop 8 passed very strongly in 2008, despite the leftist trend in California; through the citizens initiative constitutional amendment, voters declared that only traditional, opposite-sex marriage will be valid or legal in the state.

In response, Judge Walker issued a sweeping ruling in Perry that the United States Constitution mandates same-sex marriage. (The ruling only formally applies to the Northern District of California; but if the reasoning is generally accepted by the courts, it would apply equally throughout the state, and indeed throughout the entire country.)

The defendants, defending the initiative, argue that Walker (nominated in 1989 by George H.W. Bush) should have recused himself from the case. Not because he is gay, which was fairly well known; but because he was secretly in an undisclosed, long-term, committed, same-sex relationship, thus very likely to have an interest in marrying his companion if Prop 8 were overturned. He did not disclose his relationship until he had retired from the bench -- after striking down the amendment.

Defendents argue that, in other words, Walker should have recused himself because he was acting as "judge in his own case."

Defendants have made it quite clear from the beginning that the problem is not being gay; the problem is being in the very class of people most affected by the ruling: People for whom there is a strong presumption they want to marry their same-sex partners.

But of course, the Left's best strategic line of attack is to smear anyone opposed to same-sex marriage as a bigot and "homophobe;" and the best tactic in service to that strategy is to caricature the defendants' objection to Judge Walker as the mere fact that he is gay. Surprise, surprise, the Associated Press plays ball.

They begin with an honest recitation of the argument:

Lawyers for the sponsors of the voter-approved ban asked the chief federal judge in San Francisco to vacate a decision issued by his predecessor last year that declared Proposition 8 an unconstitutional violation of gay Californians' civil rights.

They maintain that former Chief Judge Vaughn Walker should have recused himself or disclosed his relationship status before trial because he and his partner stood to personally benefit from Walker's verdict.

But in all subsequent reference, they revert to form:

Ted Olson, one of the lawyers for the two same-sex couples who successfully sued to overturn the measure, said he was unaware of any other cases in which a ruling was challenged because of the issuing judge's sexual orientation. He called the move to disqualify Walker frivolous and demeaning and said that expecting judges to reveal parts of their personal lives when hearing gay rights cases would set a dangerous precedent.

"What would a judge do who was Mormon knowing the Mormon Church took such an active role" in campaigning for Proposition 8, Olson asked. "What would a judge who had a nephew or niece or son or daughter who was gay or lesbian do? We have an unlimited number of permutations of what a judge might be asked to disclose."

Well, all right; a nasty smear; but they're just quoting Ted Olson -- it's not the AP's editorial voice!

But then there's this:

Many legal scholars have said they do not expect Ware to overturn Walker's decision. They point out that while having a judge's impartiality questioned because he is gay is new territory, efforts to get women judges thrown off gender discrimination cases or Hispanic judges removed from immigration cases have failed.

In this case, the vague phrase "many legal scholars have said" clearly means "we at the Associated Press, along with all progressive-thinking people, emphatically state that...." The tip-off is the tendentious, misleading, and inapt equating of defendants' recusal request in this case and "efforts to get women judges thrown off gender discrimination cases or Hispanic judges removed from immigration cases" -- two obvious cases of bigotry, sexism, and racism. The analogy is not crafted to illuminate the issues in the case; it's purpose is to villify the defendants.

Judge Walker's handling of the trial truly lived down to his "show trial" intentions. Initially, there was a strong possibility that there would be no defendant at all. Generally, the state attorney general defends any state law from lawsuits to overturn it; barring that, the governor defends the law.

But Gov. Arnold Schwarzenegger, despite being named as defendant in the case, refused to defend the lawsuit. And of course Attorney General Jerry Brown (now California governor) was equally unwilling to defend either traditional marriage or the citizens-initiative process.

Without a defendant, the case would have been decided via summary judgment; but that did not serve the propaganda purposes of Vaughn Walker: He wanted a chance to stage-manage the trial to issue pronunciamentos, lectures, hectors, and especially a huge series of "findings of fact" that would forever enshrine same-sex marriage as a fundamental constitutional right. Thus he allowed the Alliance Defense Fund to represent the backers of Prop 8 as defendants, giving him a forum to pontificate.

He indeed issued his findings of "fact" by the bucket full, characterizing them (with astonishing arrogance) as "beyond any doubt" and "beyond debate." But after issuing his all-encompassing diktat, defendants became a liability. So in a stunning move, he simply wished them away.

Walker issued a ruling that the backers of Prop 8, the very defendants that Walker himself accepted as advocates for the proposition in his own courtroom, no longer had standing to file an appeal to the Ninth Circuit Court of Appeals! In fact, Walker went on to rule that nobody had any standing, and therefore his decision was unreviewable by the appellate courts or by the Supreme Court.

Then he retired from the bench, mission accomplished.

(The question of whether a judge can first rule and then declare that his ruling is beyond all review is still pending; the Ninth Circus awaits a decision from the notoriously left-leaning California Supreme Court, which itself previously struck down the earlier citizens initiative, Prop 22. It was the state Supreme Court's overturning of Prop 22 that forced voters to return to the polls and pass traditional marriage all over again, this time as a state constitutional amendment. Now that same court holds the key to whether anybody is allowed to appeal Walker's verdict. What could possibly go wrong?)

But back to examples of Walker's indisputable findings of "fact" about same-sex marriage. He found as a "fact" that beyond any doubt, children raised by two fathers but no mother, or two mothers but no father, were just as well off as children raised by a mother and a father.

I have discussed the "studies" that purport to show that either mothers or fathers (or both?) are dispensible; every one of them relies upon the subjective opinon of teachers and counselors, or worse, the subjective self-report of the same-sex parents themselves. ("Hey, is your kid well adjusted?" "Heck yeah!")

But there are quite obviously many objective measurements of such children that could be undertaken that would be much more dispositive and credible, from behavioral problems, drug and alcohol abuse, arrest records, and aggressiveness/passivity; to graduation rates, marital history, health, economic well being, psychological adjustment, and socialization; to sexual preference of the children, religiosity, and political activism and orientation.

Oddly, secular psychologists and sociologists appear to have shied away from conducting any studies based upon objective criteria; yet they repeatedly publish "studies" based entirely upon the subjective reports and self-reports noted above. Sometimes, you just have to wonder.

Vaughn Walker also held as an undisputed "fact" that opening up the definition of marriage to same-sex couples has no impact on opposite-sex marriages. Not only is this disputed, it is at the very heart of the popular resistance to same-sex marriage in the vast majority (90%) of states in the United States.

The damage is not direct, of course; if Vaughn Walker marries his live-in lover, it will not cause Sachi and me to divorce. But there is a definite and measurable indirect impact on all real marriages from allowing counterfeit marriages to fly under false colors. That impact is is exactly analogous to the impact of counterfeit money on real money: The value of money (or marriage) itself is devalued when the term is granted, willy nilly, to items that don't deserve it, whether hundred-dollar bills printed by some guy in his basement or a marriage between two guys or two gals.

The value to society of an institution like marriage is precisely its exclusivity; being married improves one's life not directly because a cleric or clerk utters a few words, but because the status of being married indicates that two people have achieved a specific standard of relationship.

In academia, being an A-student means that the student has learnt the material well enough to achieve an A on tests and projects. It's a reasonably good predictor of future academic success because it represents past academic success. But if teachers change the standard to give an A to any student who even attempts the test, no matter how good or poorly he does, then being an "A-student" will become meaningless; and it will no longer be a good predictor of how well that student will do in his later career at an institution that doesn't grade on good intentions.

Similarly, if any old relationship between X adults of either gender, for any old purpose whatsoever, can be called a marriage, then being "married" is meaningless; and it will not predict anything at all about one's future life.

If you'll recall, on the question of whether Walker, in a committed, long-term, same-sex relationship, should have recused himself from deciding whether same-sex marriage is mandated by the United States Constitution, AP weighed in by equating the question to whether any female judge must recuse herself from hearing a case of gender discrimination, and whether any Hispanic judge must recuse himself in any immigration case. The analogy is argumentative and a risible reach from the facts in the Walker case.

I can think of a much better analogy, closer to the issue but equally clear. It also has the advantage of being neutral, unlike the AP's handwaving.

Consider a lawsuit seeking to overturn laws against bigamy by arguing that they are unconstitutional. Now the judge doesn't tend discuss his religion, but suppose it's known that he is a Mormon. I would absolutely agree with the plaintiffs in that case that mere membership in the Church of Jesus Christ of Latter Day Saints (LDS) is not sufficient to require the judge to recuse himself. (For one reason, the LDS church prohibits polygamy and has for more than a century.)

But suppose after the judge rules in favor of the plaintiffs, striking down the law against polygamy, he reveals that he's a member of a heretical Mormon sect that endorses "plural marriage." And suppose we discover that he's married but has lived for years with his wife and another woman, all of which he successfully concealed throughout the trial.

I believe there is a strong supposition he hopes to be able to marry his second wife, thus we could make a good case for an extreme conflict of interest. How say you then about recusal?

It's hard to read the tea leaves on this one. Judge Ware appeared to attack both sides' arguments, according to another AP story.

In any event, we should know by tomorrow; according to Aaron Worthing at Patterico's Pontifications, observers of the hearing tweeted that Chief Judge Ware said he would rule within 24 hours.

If I had to guess, I would place a bet (and give odds) that Ware will not overturn the Walker decision, if for no other reasons than that the current Chief Judge identifies very strongly with his pal, the former Chief Judge; and that what we see as the arrogance of an out-of-control judiciary, Ware sees as the firm hand of judicial wisdom guiding the country to a more just, equitable, nondiscriminatory, and progressive America. They are two peas of a feather.

Hatched by Dafydd on this day, June 13, 2011, at the time of 9:50 PM

Comments

The following hissed in response by: Chris Balsz

The above hissed in response by: Chris Balsz at June 14, 2011 5:34 PM

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