By George Kane

Federal Court Finds California’s Proposition 8 Unconstitutional
Federal District Court Judge Vaughn Walker’s ruling in Perry v. Schwarzenegger early in August that overturned California’s Proposition 8, a constitutional amendment that defined marriage as a union between “a man and a woman,” set off a predictable storm of outrage from the religious right. Tony Perkins, the President of the Family Research Council, complained on CBS’ Face the Nation that Judge Walker should have recused himself because he is “openly homosexual.”

 

Judges are expected to recuse themselves from cases in which they have a conflict of interest, and could personally benefit from their ruling.  But clear lines are hard to draw when the standard is simply any condition that might cause others to question the judge’s impartiality. If the religious right claims that a homosexual judge would be partial to a decision favoring same-sex marriage, should opponents of Proposition 8 not question the impartiality of a heterosexual judge, who would be inclined to protect what religious conservatives claim is the “special status” of traditional marriage? To assert that a homosexual judge must recuse while a heterosexual judge need not is to prejudge the merits of the case.  Of course any experience may influence a judge on any case, but a personal benefit would only be evident if Walker were to apply for a marriage license.  I rather like the idea of insisting that all Christian judges, or even all god-believing judges, recuse themselves from Establishment Clause cases. Realistically, I think that this idea has the same merit – legally and practically insufficient – as the demand for Judge Walker’s disqualification.

But Perkins’ assertion that Judge Walker is “openly homosexual” is a gross overstatement.  He has never made any public statement on the question of his sexuality, and certainly none to the press.  All of the assertions that he is gay are based upon an unattributed report in the San Francisco Chronicle that it is “an open secret.” That article reported no sourcing of any kind – neither witnesses, nor a boyfriend, nor a confidant.  The story is based on nothing more than the unverified allegation of an “open secret.”

Bryan Fischer, host of the American Family Association’s weekday radio program Focal Point, wrote in a column on RenewAmerica.com that Judge Walker wanted to “become a media star, the Judge Ito of the homosexual movement.”  That is blatant misrepresentation to “poison the water” of the meticulous decision of Perry v. Schwarzenegger.
   

Most reputable American newspapers refuse to be a party to “outing” public figures as homosexuals.  Many have published standards requiring that, unless the person has stated his or her sexual orientation, they will not report it, even if other news organizations have already.  Nevertheless, when right wing organizations demand that Judge Walker be disqualified because he is gay, newspapers like The New York Times report it.  The right wing has thereby succeeded in manipulating the mainstream press into spreading their smear campaign.  In assessing Walker’s political leanings, no one mentions that he was appointed to the federal bench first by Ronald Reagan, then again by George H.W. Bush, and that his confirmation was opposed all the while by Senate Democrats.
   

At least in small part, I was disappointed in Judge Walker’s decision. The reason that Minnesota Atheists supports same-sex marriage is that the rights of gays and lesbians are the target of political attack based upon religious prejudice. While the decision at one point observes that “(t)he state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose,” yet, in his decision, Judge Walker never mentions the dominant role that religious organizations played in the Proposition 8 campaign.
   

Plaintiffs in this case named as Defendants Governor Arnold Schwarzenegger, Attorney General Edmund G. Brown, and other state officials.  All of these defendants, however, declined to defend Proposition 8.  But the organization that orchestrated the campaign, protectmarriage.com –Yes On 8, A Project Of CaliforniaRenewal, stepped forward as Defendant Intervenor, and conducted the defense.  The decision notes that the campaign advertisements from this group “conveyed to voters that same-sex relationships are inferior to opposite-sex relationships and dangerous to children,” a claim that they did not make at trial.  Judge Walker took no notice, however, of where the funding and staffing came from.
   

Latter Day Saints (Mormons) contributed about half of the $40 Million raised by the campaign, plus 80 – 90% of the door-to-door volunteers. Substantial funding was also provided by the Roman Catholic Archdiocese of California and the Knights of Columbus; the Union of Orthodox Jewish Congregations of America; the Eastern Orthodox Church; and the American Family Association, Focus on the Family and the National Organization for Marriage, which are run by Evangelical Protestants.
   

I recommend that everyone read the decision at http://www.scribd.com/doc/35374462/California-Prop-8-Ruling-August-2010 . It is based on solid findings of fact and law that the appeals court will find difficult to overturn.  The ban on same-sex marriages in California, however, remains in effect until a ruling on the appeal.