Cue the crazies. The Proposition 8 case is about to get really, really ugly.

[elfs]

Judge Vaughn Walker, the judge in the current Proposition 8 case, is gay.

There are going to be accusations from just about the entire right-wing world that this was a set-up, that the judge is biased and the processes designed to make them look stupid. Never mind that they did that to themselves. Never mind that not a single person going before the court on behalf of Proposition 8 could actually make a case for there being anything wrong with homosexual marriage, that several of Proposition 8's own presentations made Proposition 8 look bad, that one of the defendants actually wrote in opposition to Prop 8 just two years earlier, and another wrote in opposition to the initiative process being used to take power away from minorities. The first said he "no longer believed" what he had published twelve months prior, and the second argued that homosexuals don't constitute "a minority." (This is why you're hearing the phrase "homosexual acts" so often these days; it's a lawyerly attempt by the right to redefine homosexuality as something you do, rather than an identity.)

Proposition 8 Tracker has an email from the National Organization for Marriage (NOM) claiming that the bias is "so big and obvious" that the Supremes will have no choice but to slap it down.

It's sort-of a shame this happened this way. It'll distract from the incredibly poor and ugly arguments that the pro-8 side put up.

Comments

[doodlesthegreat.livejournal.com]

Well, that's always their way. Try to distract from the truth with a pile of bullshit. I'd like to know how a straight judge couldn't be argued as being biased in the same way.

[darrelx.livejournal.com]

Duh. Easy argument.

Your position that a straight judge would be biased in the other direction assumes (incorrectly) that being straight means being against same-sex marriage... where it's a safe assumption that a gay judge *would* be biased in favor of same-sex marriage.

[doodlesthegreat.livejournal.com]

And you assume a gay judge would automatically be biased *for* gay marriage, instead of being an impartial judicial observer. In other words, you're still fulla bull.

[omahas.livejournal.com]

I do believe darrelx is biased...yes indeedy I do. Heh.

[darrelx.livejournal.com]

I didn't state anything here about my opinion on same-sex marriage... only that the judge acted improperly in not recusing himself.

I was disagreeing with the analogy Doodles put forward that any straight judge would have been just as biased, as the opinions among straight people about same-sex marriage is all over the board, but the opinion among homosexuals is pretty clear and unanimous.

[darrelx.livejournal.com]

How many straight people (not just judges) are in favor of same-sex marriages? Lots.

How many gay, Bi, or other alternative lifestylers do you know who are against same-sex marriage? Probably none.

It has nothing to do with whether he is a judge or not... Being gay is OBVIOUSLY going to bias him. Being straight is not so obvious. That's the criteria that should have been used for recusing himself from the trial.

[dv-girl.livejournal.com]

So a black judge could never rule on a case involving racism but a white judge could because of COURSE a white judge is less likely to be biased and treat people fairly right? I mean after all. They're BLACK!

Isn't it nice how conservative white heterosexual men believe that they're the only people capable of being unbiased? It's almost as if they have some kind of bias.

[darrelx.livejournal.com]

Still not getting it. Your analogy assumes (incorrectly) that all Black people would be biased. I know a lot of black people who are against affirmative action, against reparations, and who vote Republican. I even have a close friend who is offended by the term "african American"

You would be hard pressed to find any Gay people who are against gay marriage. you can't argue that a gay judge wouldn't be biased in this case, because that defies all reason... especially when the same judge tried to conceal that fact.

[doodlesthegreat.livejournal.com]

"Being gay is OBVIOUSLY going to bias him."

Once again, you're fulla bull, Darrel.

So does any judge that may have a religious bias also have to recuse themselves because their religion demands they go against gay marriage? Because if so, there's not going to be anyone to judge the case on the Supreme Court...

[kengr]

He didn't say a straight judge would be biased in the other direction. In fact he said "biased in the SAME way". Which to me reads as "a straight judge could be biased for gays too".

[darrelx.livejournal.com]

Judge Walker should have recused himself instead of trying to be an activist. I smelled a rat from the first moment he suggested the cameras be allowed in the courtroom... but at that point I just thought he was an idiot for making the suggestion. Now I see it was probably an attempt to bias the case.

I hate activist judges. It's not their job to implement policy, only to rule on legality of policies already implemented, and this is proof!

[omahas.livejournal.com]

Exactly. And any heterosexual judge would be biased in favor of Proposition 8, and so should automatically recuse him/herself as well.

Therefore, by definition, the only person who could possibly adjudicate this case properly is a bisexual.

Or an alien.

[darrelx.livejournal.com]

See my secondary reply to Doodles. My point was that MANY straight people are also in favor of same-sex marriages, but you will be hard pressed to find ANY gay people who are against it.

Not taking the fact he is a judge into consideration, just being gay means he will obviously be biased in favor of gay marriage and cannot sit impartially. He should have recused himself instead of trying to hide this fact so that he could manipulate the system from behind the bench.

He's a bad judge, not for being gay, but for taking this case instead of passing it on. Judges recuse themselves all the time when they have a vested interest in a particular case. He should have done the same.

I find it ironic that proponents of same-sex marriage would defend this judge's actions, since now no matter what happens, if Pro 8 gets overturned, the case will be sent back on appeal because of obvious judicial misconduct.

I'm looking at this logically and from a legal standpoint... My opinion has no bearing on the arguments I've put forward here.

[damiana-swan.livejournal.com]

My point was that MANY straight people are also in favor of same-sex marriages, but you will be hard pressed to find ANY gay people who are against it.


Not even slightly true, not to mention being based on assumptions rather than observed fact. Do a lot of gay people want legal marriage? Yes. Do all of them? Nope. A lot of them, like a lot of straight people, believe that the government shouldn't be in the business of marriage, and would strongly prefer that the government just get it's long pointy nose out of *everyone's* private life, change all the laws that base privilege on marriage, and change the tax structure too, while they're at it.

Do you have *any* idea how deeply insulting it is for you to assume and state as fact that Judge Walker (a) isn't capable of basing his decision on established law and precedent rather than his own personal bias, (b) isn't capable of being able to determine whether he has bias, and/or (c) wouldn't have the ethics to recuse himself if he did feel that he was biased?

[darrelx.livejournal.com]

The author of that article Elf cited said it first. Read the next to last paragraph.

[caraig.livejournal.com]

The defendants didn't need any help from any judge -- activist or restrained -- to bomb their case. And that was being given a lot of leeway in submitting evidence. Biased or not, they did not make a good showing.

And why would televising the case be a bad idea? Plenty of court cases have been televised, and this one at the very least is historic enough to warrant wide observation. [The argument that the defendants' witnesses were worried about being harrassed and worse after the trial doesn't hold water; all of the witnesses who asked not to be called up have been on YouTube, local and national television, and local and national radio.]

[dv-girl.livejournal.com]

Oh you know. Gay on straight violence is a major problem in our society.

And straight men are routinely fired from their jobs for cutting their hair too short or dressing too blandly.

[caraig.livejournal.com]

I do have to say, while there's anecdotal stories of harrassment against Prop 8 supporters, there's a lot less history of 'straight bashing' than 'gay bashing.' :(

[darrelx.livejournal.com]

I've answered that previously in this thread on another friend's journal:
http://ebenbrooks.livejournal.com/306685.html?thread=1441021#t1441021

[caraig.livejournal.com]

Mmm, I disagree, though I can understand your point of view. I believe the value of televising the trial would have outweighed the inevitable media circus. This was an historic event, and deserved to be witnessed. Also, the reporters -- those that reported on the trial, anyway -- clearly walked away with different stories to tell; short of reading the court transcripts, a daunting task in and of itself, readers of *either* side -- Prop 8 Trial Tracker and NOM's website -- got very different impressions of the trial.

I am a strong proponent of primary sources. If we have the technology to show people events in the raw, and let them make their own observations and decisions, we should. As soon as information starts to become second-hand, veracity and objectivity *must* be assumed.

Besides... I was curious! =) As an opponent of Prop 8, I was concerned of course, but as an observer I was very much interested in seeing how the court proceedings themselves would go.

As I said before, too, the argument that the witnesses did not want to be recognized doesn't really stand up in my opinion. All of the witnesses who asked not to testify have shown no compunction in being seen and heard on local, regional, and national television and radio, and on YouTube. They have never shown any concern at harrassment or violence in the past; a televised trial would be no different.

In addition, while I can respect the desire to 'protect' the witnesses from harrassment, the case can be made that if they are seeking to deny rights to a subset of the population -- right or wrong -- that population has a right to face their accusers. The reason being: In denying rights to a subset, they are in essence criminalizing the qualities of that subset, and is a de facto accusation of a crime; in the US there is the right to face one's accuser. Now, this is a bit of a specious argument, I will admit; and it has never directly translated into a right to broadcast a trial via television. However, only during the Civil Rights movement was there a similar -- note similar, not identical -- situation where a large subset of the nation's population were denied rights that were enjoyed by the rest of the population. The technology did not exist then for all or most members of that subset to observe a trial or court proceeding where their rights were called into question. Today, this technology is widespread and virtually trivial to implement, so why should it not be televised so that all members of that subset can observe the proceedings?

[darrelx.livejournal.com]

All of the witnesses who asked not to testify have shown no compunction in being seen and heard on local, regional, and national television and radio, and on YouTube

I don't believe that statement is true. I"m not sure where you heard it, but I think you are repeating a lie. Can you cite examples of witnesses who dropped out after the threat of live video who have otherwise been visibly vocal about this matter?

..that population has a right to face their accusers...

That right is one of the defense, not of the plaintiff. The opponents of Prop 8 are the plaintiffs in this case.

Oh, and just to be clear, my position on video in the courtroom is professional, based on my 16 years experience as a Litigation Technology Consultant. I frequently work in courtrooms, operating evidence presentation systems for my employer. It doesn't matter to me what the case is about, live video in a courtroom has proven to be disruptive and counter-productive to justice.

[(Anonymous)]

It'll be an annoying distraction for a while, but won't really matter one way or another in the long run. This case is guaranteed to go the Ninth Circuit and eventually the U.S. Supreme Court. The lower court shenanigans will be old news by the time this gets to where it's going.

Number 127

[dv-girl.livejournal.com]

The whole thing really just amounts to cross-burning.

There's enough money in their campaign that they have hired good lawyers and the judge's life was not a deep secret. They definitely knew about this well before trial. They've just kept it as a weapon in case things weren't going their way. They're likely hoping that by now claiming the judge is biased they can make him afraid of having his professional career damaged and get him to rule in their favor or at worst, that they might get him to recuse himself now, causing a mistrial and starting over at this level in hopes of getting a judge more favorable to them because they know if they lose here, they've basically lost entirely because they believe the 9th circuit will not rule in their favor and the supreme court will probably try to dodge the bullet and leave the lower court ruling intact rather than have the mess thrown on their doorstep.

Of course, I'd like to pose this little bit of awesome:

If a gay judge can't try the case because of bias and only a straight judge can be unbiased about it, that implies that gay marriage must have absolutely NO effect on the lives of straight people and that's a HUGE flaw in their central argument in favor of this legislation.

[solarbird]

(This is why you're hearing the phrase "homosexual acts" so often these days; it's a lawyerly attempt by the right to redefine homosexuality as something you do, rather than an identity.
This language has been in use for decades, it's not new. They've always tried to define away from identity.

[dv-girl.livejournal.com]

If Jesus himself ruled in favor of gay marriage, they'd still scream and stamp their feet and wail about how some limp-wristed (and if driving nails through your wrists doesn't make them limp, I don't know what will!) faggy hippy love-child who spent his life out in the desert with a group of men had some kind of bias.

Or as Ambrose Bierce summarized it, "Justice (n): A decision in your favor." Nothing else is going to be acceptable to them.