Jon W. Davidson: Lose the ruling, attack the judge
August 13, 2010
Posted by Jon W. Davidson on latimes.com:
"When you don't win an argument on the merits, change the subject. That seems to be the favorite tactic of groups opposed to marriage equality for same-sex couples.
"Last week, U.S. District Chief Judge Vaughn R. Walker ruled that Proposition 8, California's voter-approved amendment restricting marriage to one man and one woman, was unconstitutional. So now the opponents of the freedom to marry, who didn't win on the facts of the case, have found something else to argue about. Citing reports that Walker is gay, Proposition 8's supporters are insisting that their case didn't get a fair trial because someone who is gay couldn't rule on the case without bias.
"A statement by the American Family Assn. released last week called it 'extremely problematic that Judge Walker is a practicing homosexual himself. He should have recused himself from this case, because his judgment is clearly compromised by his own sexual proclivity.'
"This all-too-familiar strategy of diversion is not only unfair to Walker, it is a destructive attack on the role of our judicial branch of government.
"Much like a suggestion that a female judge could not preside over a case involving sexual harassment, or an African American judge could not preside over a case involving race discrimination, Proposition 8's supporters are suggesting that a judge will rule in favor of any litigant with whom he shares a personal characteristic. This is an absurd proposition.
... "Lambda Legal is a gay rights group, but in the thousands of cases we've litigated over our 37-year history, we have never argued when we lost a case that it was because the judge was straight. We may disagree with rulings, but if a judge rules against us, we don't try to divert people away from the merits of the factual findings and legal arguments — a tactic those opposed to marriage equality have relied on.
"Judges hold a special and respected place in our society. Every day, they are called on to administer justice: in routine contract or traffic court disputes, gut-wrenching child custody decisions, complex criminal proceedings and, as in this case, disputes about the basic human rights that our Constitution is designed to protect. There may be judges who betray their responsibilities and act with bias, but such a grave accusation must be supported by evidence. Simply disagreeing with a decision is not evidence that it was the result of bias. And assuming that certain personal characteristics, including sexual orientation, render some judges unable to interpret the law and do the job they have sworn to do insults both judges and America's system of justice."
Click to read the full post: [Link]