As we've documented, National Review Online blogger Ed Whelan and other supporters of California's ban on same-sex marriage seek to vacate Judge Vaughn Walker's ruling striking down that ban on the grounds that Walker is gay. At the same time, Whelan continues to pretend that Walker's sexual orientation is not the issue. The real problem, Whelan says, is that Walker is in a long-term same-sex relationship and therefore may want to marry his partner.
He makes this distinction because, as legal ethicists nearly universally agree, as numerous newspaper editorials and commentators have argued, and as Whelan himself acknowledges, it would be problematic to say a judge must be disqualified from the case simply because of his or her sexual orientation.
Now, in response to a brief filed by opponents of California's same-sex marriage ban, Whelan has sunk to a new low, defending his position by saying that a gay judge assigned to a case on same-sex marriage must either disclose "intimate details" about his or her personal life or silently reassign the case to another judge.
The brief points out the absurdity that would result from the test Whelan advocates, with women of childbearing age being forced to disclose whether they have the ability to conceive before deciding an abortion case and the like:
Proponents' construction of Section 455(a), however, would require federal judges to publicly disclose intimate details of their private lives "so that the parties [can] consider and decide, before the case proceed[s] further, whether to request [a judge's] recusal." For example, under Proponents' unprecedented construction, no African-American judge who had children attending segregated schools could have decided Brown v. Board of Education, unless he publicly disavowed any interest in his children attending integrated schools. Similarly, no judge in an interracial relationship could have decided Loving v. Virginia unless the judge disclosed to the public that he had no desire to marry his partner. And, no female judge of childbearing age -- and no male judge in a relationship with a woman of childbearing age -- could decide an abortion case unless the judge publicly disclosed those intimate relations and disavowed any interest in an abortion (or disclosed an inability to conceive). Moreover, Proponents' expansive construction of Section 455(a) would not be limited to judges who are members of minority groups. For example, according to Proponents, no judge with white children could have decided Grutter v. Bollinger or Gratz v. Bollinger unless the judge disavowed any intent for those children to attend a public college. Proponents' argument thus not only would severely restrict the number of judges deemed sufficiently impartial to decide constitutional questions, but Proponents' emphasis on disclosure of any theoretical interest that a judge might have in the constitutional rights at issue would effectively require a public inquest into judges' most private thoughts and relationships -- including their plans to wed and bear children. [citations omitted]
Elsewhere, the brief points out just what kind of "public inquest into judges' most private thoughts and relationships" would be necessary under the purported ethics standards pushed by Whelan:
Just how long term, or how serious, would a gay judge's relationship have to be to require recusal under Proponents' proposed standard? Would we inquire not only into the judge's interest in marriage, but also that of the person with whom he is in a relationship? Of course Proponents attempt no such line-drawing, because to do so would only highlight the unworkability of their position.
Whelan doesn't dispute that a gay judge would have to disclose such "intimate details" before sitting on such a case. Rather, Whelan responds by arguing:
[The brief] contend[s] that Prop 8 proponents' reading of section 455(a) "would require federal judges to publicly disclose intimate details of their private lives" so that parties could assess whether the judges must recuse. But a judge who wishes not to disclose facts that bear on recusal has the simple option of asking the court clerk to reassign the case. Reassignments happen routinely, for various reasons, so a reassignment would not give rise to any inference about, much less disclosure of, "intimate details." So there is no genuine conflict between a judge's privacy interests and the laws governing recusal.
So apparently for Whelan, a gay judge selected to preside over a same-sex marriage case has a choice: Either disclose "intimate details" -- including whether he or she is in a relationship, how long the relationship has been going on, what the judge thinks of marriage, and maybe what his or her partner thinks of marriage -- or silently slink away from the case.
But it's even worse than that. As the brief says: "Judges have a duty to sit and decide cases unless there is a legitimate reason to recuse." Thus, if Whelan is correct, a gay judge who does not believe he or she should be disqualified must preside over the case and must disclose the intimate details of his or her sexual orientation, relationship status, and personal views on marriage.
Common sense suggests that this cannot be the law. And judicial ethics experts agree that this is not the law.