Thursday, August 5, 2010

A Bad Judgment Call

With all the discussions about a federal court judge overturning California's Proposition 8 on constitutional grounds, there's a concept that has been missed, one that fundamentally changes the judicial system as we know it.

When there is an actual or perceived conflict of interest with a judge trying a case, he or she is expected to recuse himself/herself from the case. That conflict of interest can be either for or against one of the parties involved, such as a racist judge overseeing a murder trial where the accused is a member of a race the judge doesn't like. At that point, a judge that cannot be fair and just to all parties and justice cannot be done.

What does that have to do with the Prop 8 decision? The federal judge is openly gay. Considering the matter before him was a ban on gay marriage, I would say his sexual orientation may have had some role in his decision. And, yes, I would say the same thing if it were a straight judge ruling on the same case.

The reason I would is because any judge worth his or her salt would have to admit they couldn't rule on the Prop 8 case for the reason I cited above. When people are either straight, gay, or bisexual, there is truly no impartial party who could rule on such a case in a fair and just manner for all parties. Thus, there will always be a conflict of interest in cases like this.

Yet, the Left has no problem with a gay judge overturning a law on constitutional grounds (even though there is no civil right to marriage). But let's switch the roles a bit. Let's say the judge was someone who was to the right of, say, Rush Limbaugh. The Left would be screaming at the top of their lungs about how the judge couldn't possibly be fair and, thus, his ruling should be overturned.

You know, like the Right is doing with this case?

The problem with the Left/Right dichotomy in this situation is that there's a greater principle at work: impartial judges. When we have judges on either side who selectively apply ethics depending on what side they want to win, justice cannot be served. Instead, only political needs are met, and the Prop 8 case is a prime example of that. And thanks in part to a gay judge in California, we've crossed that Rubicon yet again.

Of course, the Left will try to paint anyone opposed to the judge's ruling as homophobic. Be my guest. Call me a homophobe all you want, but you've just justified another activist judge with more conservative leanings to overrule you should you challenge a gay marriage ban in another state.

And there's not a damn thing you can say about it without looking like a hypocrite.

1 comment:

Karl said...

It seems the only option is to find a bisexual or asexual judge to avoid the conflict you speak of. Good luck with that. Practicality has to enter into the equation at some point.