As California awaits Judge Vaughn Walker’s decision whether to indefinitely stay his opinion striking down Proposition 8, anti-gay groups are already clamouring for a do-over. In an op-ed echoing a claim by various right-wing hate groups, anti-gay law professor John Eastman claims that Judge Walker’s decision must be tossed out because of widely shared rumors that Walker is gay:
If Judge Walker is indeed in a long-term, same-sex relationship, he certainly has an “interest that could be affected substantially by the outcome of the proceeding” – he and his partner are now permitted to marry! – and that, according to Judge Walker’s own finding, has financial benefits as well. Such conflicts would have required recusal, and cannot be waived by the parties.
If the relationship does not create such a conflict, it nevertheless creates the circumstance “in which the judge’s impartiality might reasonably be questioned.” That ground for disqualification can be waived by the parties, but the judge must “disclose on the record the basis of the disqualification” and then only continue after the parties have agreed in writing to his continued involvement. No such disclosure and agreement occurred in this case.
Judge Walker’s failure to disqualify himself or at least to disclose his potentially disqualifying relationship to the parties requires that the opinion in the case be vacated and a new trial conducted before a different judge.
Eastman, however, not only misstates the law, he aligns himself with some of the most hateful arguments of the post-Jim Crow era. As Professor Sherrilyn Ifill explains, Jim Crow supporters such as the Ku Klux Klan repeatedly argued that black judges must recuse themselves from racial justice cases, and their arguments were repeatedly struck down.
In perhaps the most famous of these cases, lawyers representing the New York law firm of Sullivan & Cromwell requested that federal district judge Constance Baker Motley recuse herself from hearing a case brought by women lawyers at the firm who charged discrimination in hiring and promotion. . . . Motley refused to withdraw from presiding over the case, offering the now classic explanation that “if background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others, by virtue of the fact that all of them were attorneys, of a sex, often with distinguished law firm or public service backgrounds.”
A year earlier, federal district judge A. Leon Higginbotham (also now deceased) refused to recuse himself from a case adjudicating the claims of African-American union members who charged that a local contractors’ union discriminated against them. . . . Judge Higginbotham argued that “[white] litigants are going to have to accept the new day where the judiciary will not be entirely white and where some black judges will adjudicate cases involving race relations.” From Texas to Illinois, other black federal judges fought off similar motions filed by defendants in civil rights cases, including one in which lawyers for the Ku Klux Klan sought to remove Judge Gabrielle McDonald from hearing a case on the grounds that she was “prejudiced against the Ku Klux Klan.”
Eastman attempts to deflect these precedents by claiming that Walker does not need to recuse himself because he is gay, but simply because he might someday wish to marry a man. This argument, however, proves way too much. Justice Clarence Thomas, who is openly black, may wish to stay in a hotel some day, but he is not required to recuse himself from cases challenging the ban on discrimination in public accommodations.
Moreover, the anti-gay right’s own arguments against marriage equality defeat their case against Walker’s recusal. If anti-gay bigots are correct that same-sex marriage weakens opposite-sex marriages, then any married judge would be required to recuse themselves, or at least make a formal disclosure of their marriage, because they would have a personal stake in preventing their own divorce.