January 4th, 2011

BMC - juno

Prop 8 stuff

Though I haven't talked about it much, I've continued to follow the various Proposition 8 trials and tribulations with great interest. Right now it's at the appeals stage; the hearing was about a month ago, at the federal courthouse about a block from my workplace. I happened to head that direction for lunch that day -- not on purpose, just by chance -- and I walked right through the anti-equality protest that had set up shop. One of the protestors was a man with a bullhorn who proclaimed that the morning rainstorm represented "God's Judgement on the city of San Francisco".

Considering that we've had a few drought years and need all the rain we can get, I wonder what message we're actually supposed to be taking, here.

Anyway, so the trial happened, and today we finally got some news: a punt of sorts. The Court of Appeals did not issue a ruling; instead, they sent the case back to the California Supreme Court to determine whether the proponents even have "standing" -- in other words, the right to appeal the original ruling that declared Prop 8 unconstitutional. (If you're not familiar with the standing issue, this is a pretty good summary.) If the quotes from this Daily Kos article are any indication, the Court of Appeals seem to think that the proponents ought to have standing, but given the lack of case law in California on this issue, they want the state courts to make the final ruling. Which is logical, even if it does draw the case out even further.

So I find all this interesting, as I have found all the twists and turns in this case interesting, but that's not actually why I linked to the article. Another issue that came up on appeal was whether one of the judges, Stephen Reinhardt, ought to excuse himself from the case because his wife is an executive at the ACLU. He dismissed this charge entirely, in a memo that includes this awesome quote (pulled from the Kos link, above):

My wife’s views, public or private, as to any issues that may come before
this court, constitutional or otherwise, are of no consequence. She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa). I share that view and, in my opinion, it reflects the status of the law generally, as well as the law of recusal, regardless of whether the spouse or the judge is the male or the female....

When I joined this court in 1980 (well before my wife and I were married), the ethics rules promulgated by the Judicial Conference stated that judges should ensure that their wives not participate in politics. I wrote the ethics committee and suggested that this advice did not reflect the realities of modern marriage–that even if it were desirable for judges to control their wives, I did not know many judges who could actually do so (I further suggested that the Committee would do better to say “spouses” than “wives,” as by then we had as members of our court Judge Mary Schroeder, Judge Betty Fletcher, and Judge Dorothy Nelson). The committee thanked me for my letter and sometime later changed the rule. That time has passed, and rightly so.

It would be one thing if the ACLU were actively involved in this particular case, but they aren't. The only reason to think Reinhardt might have a conflict of interest is if you assume that married couples are incapable of holding independent opinions. This is an obnoxious assumption, and I'm always glad to see it smacked down.

This entry is also posted at http://owlmoose.dreamwidth.org/511232.html. There are currently comment count unavailable comments on DW.