The path to marriage equality has advanced in various areas of late. A bankruptcy ruling, a rejection of a Walker recusal claim and (best of all) a step closer to marriage equality in New York suggests sometimes good news comes in threes.
The basic sentiment of the recusal ruling is that being in a same sex relationship is no less a barrier to deciding the issue than being a woman would be when their equal rights were at stake. A judge can be trusted to do his/her job in such cases and beliefs otherwise are "unreasonable" under our system. A claim otherwise might need not be deemed "appalling" to be shown to be weak.
The basic rule put forth:
The judge in this position is in the same position as "the general public" and the alternative ignores that when deciding such questions ultimately as a legal matter, "we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right." The heterosexual could be as concerned if s/he thinks the law is acceptable as a way to protect marriage. I would add that some possible personal factor added only underlines the value of a diverse bench, just as sexuality shouldn't lead a person to be unable to be on a jury deciding an alleged hate crime.
To single out Walker might not rest things on sexual orientation alone but still ultimately rest "on the sole ground of Judge Walker’s same-sex relationship.” After all, there was no evidence of him planning to get married (this alone underlines why the claim was weak as applied to this case though in some theoretical case, the matter might be less easy) and a person in a different sex marriage can have concerns about the law as well. Such a de facto focus on personal characteristic has been rejected.
Some might have a kneejerk feeling that it is not totally off or bigoted to think Walker could not avoid an appearance of impropriety. But, it is hard to imagine such a rule would be truly applied evenhandedly. Any number of cases involve rights that might benefit the judge as well as the general public; did the judges in the Connecticut contraceptive cases have to lack an interest in using them? The logic of Prop 8 suggests the different sex judge (especially since the rules apply to something that involves a spouse and minor children) would be interested, since the law is "necessary" to protect their marriage or the safety of their children.
The bankruptcy ruling underlines the breadth of anti-SSM rules in place, including many federal rights that are reliant on different sex marriage. If you don't want to call it "marriage," what interest is there to deny bankruptcy protection to same sex couples, particularly if you do accept they can have "civil union" benefits. The chance that a few final votes will be found in the NY Senate (and the new governor is pressing the issue without having the weak hand of the old one) would mean a major success particularly given the likelihood California will follow in one way or the other within the next couple years.
I have a personal stake given my own state is involved. I recall the days when DADT first was an issue and Hawaii led the way on the idea of SSM. My access to the Internet wasn't the only things that changed and continue to change since then. Progress is not always in a consistent direction, but on this issue, remarkable changes have come to pass. More will follow.
The basic sentiment of the recusal ruling is that being in a same sex relationship is no less a barrier to deciding the issue than being a woman would be when their equal rights were at stake. A judge can be trusted to do his/her job in such cases and beliefs otherwise are "unreasonable" under our system. A claim otherwise might need not be deemed "appalling" to be shown to be weak.
The basic rule put forth:
The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself.Thus, another ruling held that "recusal was not warranted ... in an action brought by an abortion clinic against protestors of the clinic where one of the presiding panel judges belonged to the Catholic faith." Also, the claim of appearance of bias rests on "assumptions about the amorphous personal feelings of judges in regards to such intimate and shifting matters as future desire to undergo an abortion, to send a child to a particular university or to engage in family planning."
The judge in this position is in the same position as "the general public" and the alternative ignores that when deciding such questions ultimately as a legal matter, "we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right." The heterosexual could be as concerned if s/he thinks the law is acceptable as a way to protect marriage. I would add that some possible personal factor added only underlines the value of a diverse bench, just as sexuality shouldn't lead a person to be unable to be on a jury deciding an alleged hate crime.
To single out Walker might not rest things on sexual orientation alone but still ultimately rest "on the sole ground of Judge Walker’s same-sex relationship.” After all, there was no evidence of him planning to get married (this alone underlines why the claim was weak as applied to this case though in some theoretical case, the matter might be less easy) and a person in a different sex marriage can have concerns about the law as well. Such a de facto focus on personal characteristic has been rejected.
Some might have a kneejerk feeling that it is not totally off or bigoted to think Walker could not avoid an appearance of impropriety. But, it is hard to imagine such a rule would be truly applied evenhandedly. Any number of cases involve rights that might benefit the judge as well as the general public; did the judges in the Connecticut contraceptive cases have to lack an interest in using them? The logic of Prop 8 suggests the different sex judge (especially since the rules apply to something that involves a spouse and minor children) would be interested, since the law is "necessary" to protect their marriage or the safety of their children.
The bankruptcy ruling underlines the breadth of anti-SSM rules in place, including many federal rights that are reliant on different sex marriage. If you don't want to call it "marriage," what interest is there to deny bankruptcy protection to same sex couples, particularly if you do accept they can have "civil union" benefits. The chance that a few final votes will be found in the NY Senate (and the new governor is pressing the issue without having the weak hand of the old one) would mean a major success particularly given the likelihood California will follow in one way or the other within the next couple years.
I have a personal stake given my own state is involved. I recall the days when DADT first was an issue and Hawaii led the way on the idea of SSM. My access to the Internet wasn't the only things that changed and continue to change since then. Progress is not always in a consistent direction, but on this issue, remarkable changes have come to pass. More will follow.