When A Gay Judge Rules On Gay Rights : NPR

When A Gay Judge Rules On Gay Rights : NPR.

We have an issue here in which all of humanity falls into one of two camps.  On one hand, you have those of us who are heterosexual.  We have it easy.  Our orientation is considered “normal”.  We form emotional bonds with mates of the opposite gender, and that works out pretty well for procreation.  It’s simple, understandable, and is generally unassailable from the perspective of society and its institutions.

On the other hand, we a smaller set of people who are oriented in a way that is considered to be “different”.   Now, I know that there’s a lot of diversity in this set of people, and hence a lot of issues impacting them.  For the purpose of this discussion, I’m going to stick to the issue covered in the article above.

For the record, I support marriage equality for same sex couples as long as churches are not compelled by the government to perform the weddings if the churches believe that said marriage is wrong.  I don’t see a constitutionally valid reason to deny same sex couples the same rights and responsibilities as heterosexual couples.  I also don’t see a slippery slope to marrying children, to polygamy or to marrying animals.  Children can’t enter into contracts, which, legally speaking (and that’s how we need to speak when talking about laws), marriage is.  Neither can animals, since they’re not human. As for polygamy, you have to show a government interest in disallowing polygamy.  I think a pretty good interest exists in two areas.  One is the orderly division of property.  Were a man with multiple wives to die without a will, there would be a big mess to work out in the court system.  The bigger one is in the size of the family.  One man having children by multiple women creates a scenario that could unreasonably stress government resources like schools and social services.  I realize there are plenty of cases of couples having more kids than they can support and or  men fathering children by multiple women.  Most of that behavior is too private to warrant legislation, but there’s no reason for it to be sanctioned by the government through the legalization of polygamy.

As an aside, one may ask about one woman with multiple husbands.  I’m pretty sure this is purely hypothetical, but I would say that equal protection would mean that a woman can have no more right to multiple husbands than a man.

Now, this brings us to the article.  The proponents of California’s Proposition 8 are saying that the judge who ruled it unconstitutional should have recused himself because he is gay and therefore has an interest in the outcome of the case.  Proposition 8 overrode a California Supreme Court ruling that gave permission for same sex couples to marry.  It did not create a mandate that would force heterosexual Californians to engage in homosexual marriage. In short, a law allowing a gay couple to marry does not force a straight couple to do anything except share the planet with gay couples which we already do. Yet, by opposing this legal right, proponents of Prop. 8 are saying that they heterosexuals have an interest in whether homosexuals can marry.  If that his the case, then how come heterosexual judges should be able to rule on this case but homosexual ones can’t.  After all, by virtue of their advocacy or their cause, the Prop. 8 proponents are claiming such an interest.

And therein lies the fallacy of their argument.  The fact is that they really have no legal leg to stand on.  The judge’s ruling is without reversible error, so the proponents have no other angle but to attack the judge for not disclosing his personal life in the courtroom.

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About Andrew

I'm a Christian, American, liberal, geeky, thoughtful, Northwest-transplanted Angeleno husband, father, and pundit who writes about anything he can think of.
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6 Responses to When A Gay Judge Rules On Gay Rights : NPR

  1. jonolan says:

    You’re just a bit off-base. The judge in question, being queer, had a vested interest in making his ruling what it was because it would directly benefit him – if one accepts the claim that Prop 8 took anything legally tangible away from queers.

    It’s a simple conflict of interests, made more so by the fact that the judge had a long time partner and is perfectly sound grounds for an appeal.

    Whether that appeal is granted or not will be another matter, since it is only grounds for appeal and would need to be scrutinized.

    • Andrew says:

      Actually, I’m not off base at all. The supporters of Prop. 8 have attempted to make the case that there is a state interest in legislating on who can and can’t get married. By that standard, heterosexuals have as much interest in the ruling as homosexuals. Therefore a heterosexual judge should be disqualified as well. Since that eliminates every possible judge, it is a ludicrous standard to try to enforce and underscores the futility of the supporters’ efforts.

  2. jonolan says:

    I think you’re mistaken in your basic facts. There’s no need for Prop 8 supporters to argue that the state has such an interest since Prop 8 was a constitutional amendment that has the power to change the states interests.

    Now, if anyone went to court with the argument you’ve claimed, you’re right in your assertion of stupidity on their part.

    Of course, either way we’re left with the underlying stupidity of the anti-Prop 8 crowd who’ve raised such an expensive ruckus over something that did absolutely NOTHING to the legal rights, privileges, and responsibilities under the laws of CA – and of the pro-Prop 8 crowd who did so over a word and the potential – only that – for later abuse by left-wing legislatures.

    • Andrew says:

      In this case, I’m using “state” to mean government. In this case it’s a suit brought over whether a state constitutional law meets federal constitutional requirements of equal protection. To say that a gay judge can’t ruleobjectively on gay marriage is like saying a black judge couldn’t rule objectively on civil rights or a woman couldn’t do so on a gender issue. Each position would be an insult to the professionalism of the judge.

      As far as the anti prop-9 crowd being stupid, how would you feel if you weren’t allowed to marry the person you want to because your relationship doesn’t qualify under someone else’s definition of “normal”?

      • jonolan says:

        I’m polygamous; my family doesn’t meet legal or societal standards for recognition. The effects of this are occasionally irksome but I’m well aware that society isn’t at a point where it can handle us and I’m not going to try to legislate acceptance.

        … and we’re not like the queers in CA who already enjoy full and complete parity under the law through Civil Unions.

  3. Andrew says:

    You know, as someone who has a family structure that does not conform to mainstream standards, I would think you’d find more common ground with and be more charitable toward others who have are in a similar situation. Now, for reasons I addressed in my post, you’re going to have a more difficult time making your case, since there are reasons that have nothing to do with religious biases. That being said, I would not deny you the right to try to make that case.

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