Published August 05, 2010
I wrote in this space yesterday that if Judge Vaughan Walker is in a committed same-sex relationship – and there is credible evidence that he is – then a question about his impartiality in the Proposition 8 trial arises.
I explained that Judge Walker could potentially benefit from his own ruling, at least if he and his partner harbor an interest in marrying. I concluded by saying, not that Judge Walker was guilty of bias, but by lamenting that the question had not been frankly explored in a timely way.
Then I went out for the evening.
Upon my return late last night I found some unfavorable reactions lying in my Inbox. Some of these correspondents were misinformed; they had relied upon the New York Times’ misrepresentation of my remarks and not upon the remarks themselves in marking their target.
There is nothing more that needs to be said about these misfires. There were all sorts of flaws in the reasoning of the other critics – when they deigned to offer reasons at all.
Some simply alleged that my arguments stunk. Some added unimaginative insults.
But even the ad hominem attackers had a point to make. It was basically the same as those who offered some reasons. They all denied (in effect) that there was evidence that Judge Walker was or even could be partial.
Now that the decision in Perry v. Scwarzenegger is in hand, we can conduct a useful experiment to see (up to a point) who is right.
We can now look at Judge Walker’s opinion and ask: is this the handiwork of an impartial and open mind on the subject of same-sex marriage?
Or does the opinion rather resemble an ad hoc rationale for conclusions reached by its author – Judge Walker – on other grounds?
You do not have to be a legal expert to conduct this experiment. You can even try it at home. Slog through Judge Walker’s 136-page opinion and then ask yourself: why does this document read like the battle report of a search-and-destroy mission?
One would think, for example, that there are some rational bases for saying that marriage is what our society and our law have understood it to be for a few hundred years: the union of a man and a woman. Not in Judge Walker’s court.
One might think, too, that some (and perhaps a lot) of what the plaintiffs’ “expert” witnesses against traditional marriage would be branded by a fair-minded judge as the fruit of passionate political advocacy, and not dispassionate scholarly analysis? Not in Judge Walker’s court.
Read the opinion and you will see that, when it comes to the defense witnesses in favor of Proposition 8, Judge Walker takes no prisoners, gives no quarter, shows no tender mercies.
He portrays those who supported traditional marriage in the Proposition 8 fight as not only wrong. They are wrong in every decisive respect, and utterly so.
But their position is not only utterly wrong. It lacks any basis in reason.
Belief in traditional marriage amounts to harboring a private prejudice; it is a barely concealed desire to harm a politically unpopular group. The traditionalists’ “arguments” are not even arguments. They are instead question-begging “tautolog[ies].”
At the end of the day all that Judge Walker can really see in the understanding of marriage that humanity credited as true until a few years ago is this: opposite sex-couples simply feel themselves to be “superior” to same-sex couples. Period. Full stop.
Now, one standard test of impartiality is fairness, and even a certain sympathy, in stating an opponent’s position and in explaining the evidence and arguments for it. This is simply what an honest search for the truth entails. Even allowing for the rough-and-tumble of litigation, Judge Walker flunks this test.
On the other hand: Judge Walker credited the plaintiffs’ witnesses across the board, and deemed almost everything of consequence that they said to be true.
Their almost flawless performance (as evaluated by Judge Walker) seems to have escaped those sources of error which plagued the defense witnesses – unacknowledged bias and the like.
The plaintiff’s witnesses’ uncanny accuracy is all the more surprising, for they were not exactly non-partisan technocrats. They are leading scholar-activists in the culture war over same-sex marriage.
Several are conspicuously passionate about the injustice of traditional marriage. Some even contributed money to the anti-Proposition 8 Campaign.
That these witnesses had a shared passionate commitment to same-sex marriage does not mean that their testimony was flawed (although I do think it was flawed, in many important respects).
Their evident partisanship does not even mean that they were unqualified to be expert witnesses. It does mean, however, that an impartial judge would be keen to subject their testimony to searching critical evaluation, lest their “private morality” (to use Judge Walker’s description of the traditionalists’ beliefs about the nature of marriage) color their public testimony. On my reading of Wednesday’s opinion, Judge Walker flunks this test too.
Judge Walker’s opinion in Perry v. Scwarzenegger shows that he uncritically accepted what the plaintiffs’ witnesses said and unwarrantedly maligned what the defendant’s witnesses said.
It strongly suggests that he was not an impartial arbiter of that trial.
It does not tell us why.
Gerard V. Bradley is a professor of law at the University of Notre Dame.
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