Prop 8 Judges Announced

When Judge Vaughn Walker, who struck down California’s Prop 8, was discovered to be *GASP* a ho-mo-sexual, plenty of Mormons cried bias and whinged that he should have recused himself. After all, being a ho-mo-sexual meant that he had a personal motive in ruling on the definition of marriage. Those with more than one brain cell pointed out that you could very well say the same thing about a straight person, and that it was as silly to claim a gay person couldn’t issue a fair ruling on gay issues as it would be to say a woman couldn’t issue a fair ruling on women’s issues.

Three randomly selected judges will review whether or not Judge Walker’s ruling will stand. One of them is a Mormon.

Riddle me this, Outer Blogness: How many Mormons will say that BYU graduate and active Mormon N. Randy Smith (blimey, even his name is ironically Mormon) should recuse himself based on the fact that he belongs to a religion to which he has presumably sworn loyalty to in the temple, and which has a leader that ordered him to do everything he could to oppose gay marriage?

The accusation of bias against Judge Walker was illogical and unfair. There is no central leadership for the gay community, and no single gay agenda. Judge Walker was answerable to no one but himself in forming his extremely well-reasoned opinion. Gay people tend to have the common goal of not wanting to be thrown in prison for what they do in private, but there is a great deal of diversity of opinion, many different gay movements, and no central authority regulating it all. You can’t say the same thing about active Mormons. It’s possible for Judge Smith to issue an unbiased ruling, but there is much more of a case for conflict of interest here. Does he follow his prophet? Could he rule in favour of Prop 8 without the taint of bias? Could he rule against Prop 8 without appearing to be insincere about his faith?

I won’t hold my breath waiting for those posts from active LDS who will agree that, in the interest of fairness and avoiding the appearance of hypocrisy, they believe Judge Smith ought to recuse himself. I will wait for all the delightful posts satirising this, though. They are already coming in.

11 thoughts on “Prop 8 Judges Announced

  1. Exactly. Walker may be gay, but he’s also a highly conservative judge. It’s a legal truism: court packing never works. Every president (with the opportunity) has tried it, with the Supreme Court, and every president has been unpleasantly surprised.

  2. Judges have a sworn duty to uphold the law. Theoretically they are not allowed to have personal biases. They have to recuse themselves if they have any personal stake in the outcome of litigation. So theoretically the Mormon judge is qualified. Theoretically.

    It will be interesting to see how much these judges are committed to upholding the law, i.e. equal protection. Regardless of how they rule, I’d be very surprised if the ruling is not appealed to the US Supremes by the losing party. I think an appeal is pretty much a given.

    • I hope it turns out he has integrity–either enough to rule on the merits, or to recuse himself. I’m not holding out a lot of hope, though. There have certainly been other Mormon jurists, of varying degrees of individuality, but the track record isn’t too appealing.

  3. I hope Smith doesn’t get excommunicated if they uphold Walker’s decision. Or maybe I do. Let them show their true colors, so everybody can see. Maybe the whole Prop 8 fiasco has already done that though. I don’t wish the judge ill, and I wouldn’t assume that just because someone is Mormon they can’t make a fair decision. I just wish I knew where I could watch it on TV!

    • The problem with reactionary excommunications is that they’re so pointlessly off base. Smith, or whoever, does something to create public policy of which the church does not approve. This person is now excommunicated. We’ve all seen it happen, on large scales and small. It’s so stupid, though, because the only “change” is personal–because the only people truly punished are the person’s family, who are innocent. The church’s emphasis on its own definition of “family”–sometimes at the cost of real family relationships–means that the truly innocent parties are the ones who are punished the most.

  4. I really think religious ideology has greater potential to cause bias than sexual orientation does, but I think Prop 8 is a fat load so I’m obviously biased.
    I think the difference is that I have yet to see a sound non-religious argument against same-sex marriage. If he’s a smart judge he’ll step down and avoid the bad press before we’re even done debating his initial selection.
    Still, I do have to echo the hope that he’d rule against the church and get excommunicated so the church can take yet another PR bitch-slap. We all know they’ve got it coming.
    Regardless, we’re still in the off-season. This could make for some interesting entertainment but the real show doesn’t start until it goes to the Supreme Court (because I’ll be incredibly shocked if it doesn’t). I’m very interested to see what the Church, Inc. would do with a second loss; what’s worse: conceding defeat of a loudly-touted doctrine from which “God” refuses to falter or getting more media and political spotlight for a position that half the country sees as bigoted? I’m excited to see if they’ll choose PR or Doctrine, as they seem to be of almost equal importance these days.

  5. Meh. People who support prop8 rabidly will always find something to make a fuss about. I heard much, much more fuss about the fact that Walker was slapped down on his request for broadcasting the trial, thereby allegedly revealing some kind of flagrant bias, than I did about him being gay revealing some kind of bias. (imho not broadcasting the trial is a huge, huge tragedy no matter what your perspective on the law–this was an important piece of history and should have been documented as thoroughly as possible) It didn’t seem to me there was nothing particularly Mormon (especially not *California* Mormon) about what outcry there was over Walker’s orientation. Frankly, most of the Mormons I know who spent the most time and energy and money supporting 8 are just kind of sick and tired of it and want to forget about it.

    It’s mostly the national Religious Right scene that makes the biggest deal of this stuff now. For example, NRO is delusionally (but I repeat myself) calling for Judge Reinhardt to recuse himself because his wife works for the ACLU. You can’t make this stuff up….

  6. Are you sure that Judge Smith is Mormon? Or that if he is a member of the church that he is active? Or that he cares at all about what the prophet says? The article you linked just notes that Smith went to BYU. You make the jump to say that he is an active member of the church. What’s your source for that? Granted as a blog author, you need not adhere to any journalistic standards – I was just curious.

    Incidentally, I went to BYU Law too, and many of classmates weren’t Mormon, and even more could care less about the church now. Just going to BYU back in the 70’s does not mean that you follow everything that church leaders say.

    • I’m glad to see another BYU alumnus who feels the same as I do. My point was better articulated by Laura Compton, who said it doesn’t matter. Overall, this has been the attitude of the pro-equality community, whilst the Yes on 8 side whinged about Judge Walker’s sexuality for weeks. The Mormon Times, an official Church publication, called Walker’s ruling judicial tyranny.

      Now there’s just whistling and twiddling of thumbs when the same alleged conflict of interest is tossed into the Church’s corner. Even the Mormon Times are only identifying him as a BYU Alum. Either the Church is reluctant to claim him openly for fear of bad press, or perhaps for personal reasons Judge Smith chooses to leave his religious views out of the public eye.

  7. Pingback: Sunday in Outer Blogness: Family Secrets Edition! | Main Street Plaza

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