Monday, August 9, 2010

Prop 8...Again

I had thought that if I heard one more word about Prop 8 in California that my head would explode. Turns out, that's not the case. Don't get me wrong; I do feel a wave of nausea come over me. But there is no cranial explosion, so that seems good. That doesn't mean that I have the stomach for some long and droning post, because I do not. That just means that I have the capacity to muse over a point that some guy who thinks his point matters is trying to make.

If you have been blissfully living under a rock or in a world where you don't have to hear about Prop 8 all the live long day, I envy you. But here's the scoop: On Friday, U.S. District Judge Vaughn Walker (probably related to Jimmie Walker...Dyn-o-mite!) essentially overturned California's ban on gay marriage, aka, Prop 8. And now a one Tony Perkins, who is the head of something called the Family Research Council, says that the judge never should have stayed on the case in the first place because of the judge's own alleged gayness.

A homo judge?! Blasphemy! Whatever. Tony Perkins (not Anthony Perkins; that was Psycho) says that Judge Walker "...should have recused himself from the case due to his own sexuality." Perkins was apparently on CBS's Face the Nation on Sunday and said, "I think what you have is one judge who thinks he knows -- and a district level judge and an openly homosexual judge at that -- who says he knows better than not only 7 million voters in the state of California but voters in 30 states across the nation that have passed marriage amendments...This is far from over."

Now, now, Tony. Let's just calm down a little. Try and keep your homophobia in check so that you can get your facts straight (no pun intended), all right? OK, then. See, Judge Walker is not openly gay. It's a rumor, but it's not an open secret and/or fact, depending on which moniker you prefer. Usually when there's a rumor that isn't true, especially if it involves one being gay, folks tend to speak out and set the record straight (pun totally intended this time). I'm not saying that means that Judge Walker is gay. I'm just saying.

And regardless as to how I feel about Prop 8, I really do hate it when something is voted on by the people and then it is struck down by a judge. That frustrates the hell out of me. Aside from the incredible waste of time and money, the right of the people to vote is kind of an important element in this country. Having it taken away or essentially nullified by one judge could be doing more harm than good. And I realize that the people can be as dumb as a box of hair a lot of the time. That isn't up for debate. What's up for debate is when people vote for something and then they're told by a judge that they can't do that. Well, if they can't do that then don't have them vote on it in the first place. Why don't you folks get those ducks in a row and stop spending my money on rearranging your ducks?

But Tony Perkins isn't the only one with his boxers in a knot. No, according to The Huffington Post the American Family Association called the decision "outrageous and unconscionable" as well as saying that it "...should never have been allowed to happen." They insisted that "Walker...should have recused himself "because his judgment is clearly compromised by his own sexual proclivity." Hmmm. Interesting.

OK, I get their point. But the problem here is that there point is coming from their interests and from what they want. Of course they think that a gay judge is going to rule in favor of the gay side of things. But why wouldn't the same litmus test be applied to the other side of that argument? If it had been a straight judge and the straight judge had ruled in favor of Prop 8, wouldn't gay folks be saying that a straight judge should have recused himself because his judgment would have been "clearly compromised by his own sexual proclivity"? I think that's a fair argument to make.

The thing that the AFA and that Tony Perkins guy are overlooking is that Judge Walker is just that. He's a judge. It's right there in his title: Judge Walker. Part of being a judge is being impartial. That's the inherent underlying implication of being a judge. You're supposed to be impartial. I have no idea whether or not Judge Walker's alleged gayness had anything to do with his ruling. I do know that his ruling was 136 pages long and that seems a little meticulous for someone who is just flying by the seat of their pants.

But don't worry Tony Perkins and AFA folks. You're right. This isn't over yet. Of course it is going to go to a higher court. And after that court rules (and it won't matter either way because it will be appealed by the losing side) then it will inevitably end up with the Supreme Court. Is that a good idea? I don't know. I think it's poor strategy, personally. I think that the tide is slowly turning in California in regard to gay marriage. I think that there were several factors that contributed to Prop 8 being passed. And the majority of those factors could be eliminated or remedied at another election. Giving the whole thing time might have been a better way to go. This way, even though the judge has ruled Prop 8 to be a no-go, there still isn't gay marriage in California. No, it's going to be put on hold for years. Several years. And when the Supreme Court rules, there is a fifty-fifty chance that they're going to rule in favor of state's rights. And if it comes down to that, then it's done. It becomes a Roe v. Wade situation which will be highly and hotly debated for future years, but will never change.

In conclusion, I expect Judge Walker's ruling to be overturned by one of the higher courts. I base that on the basis of his ruling which is something called "rational basis". He said that there was no "rational basis" for Prop 8. From what I can tell, rational basis is one of the easiest rulings to overturn. Therefore, it will be. It won't be soon, but it will likely happen. And you know what will happen then? I'm going to have to figure out how to soundproof my walled-off compound because people will never stop talking about it ever when that day comes. Maybe I need some sort of a dome. Like in The Truman Show? I'm open to suggestions. All I know is I can't take much more of the incessant debating on either side. I just want it over already.

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Mark said...

A judge should recuse himself if there is even the possibility of an appearance of impropriety.

The judge could be as impartial as Pelosi's list of deficiencies is long but if it might look like he wasn't, it undermines what shred of confidence people might actually still have in the legislature on the bench, I mean, judicial branch.

The decision was an appalling bunch of sociological mumbo jumbo, more than anything else, which in a case involving constitutional law, usually means the judge started with a conclusion and worked backwards. Sociology doesn't really affect what the Constitution says. Either way, the judge's deciding the case looks like me deciding whether tall people should get special tax breaks.

Scott Jacobs said...

As I understand it, the judge IS gay, but disclosed that to counsel, who waived any objection in writing. So while yeah, maybe he was biased, there are no grounds to object.

Besides, from all appearances, Brown threw the case anyways...