On Huffington Post yesterday, law professor Adam Winkler published an essay, titled “Should Judge in Same-Sex Marriage Case Be Recused?,” that is laughably inept on matters both large and small. Winkler, who teaches constitutional law at a respected law school (UCLA), sets out to show “how the effort to recuse Judge Walker exposes the flaws in the case against same-sex marriage.” But he succeeds only in showing that he, like a startling number of others in his profession, is incompetent in the craft of reasoned argument and remarkably sloppy. Consider:
1. Here’s Winkler’s first major argument:
In Judge Walker’s courtroom, the defenders of Proposition 8 argued that the ban on same-sex marriage didn’t discriminate because gays and lesbians weren’t denied any significant benefits. California offers domestic partnerships, which the lawyers insisted then offered all the same privileges of marriage. If that’s right, then what exactly does Judge Walker stand to gain by getting married?
Writing in the National Review Online, conservative legal commentator Ed Whelan admits that marriage is a “valuable legal right.” That is correct — and exactly why states shouldn’t be able to deny gays and lesbians the ability to marry. It’s a violation of the Constitution’s command that all people be afforded “equal protection of the laws” to deny people fundamental rights on the basis of irrelevant characteristics, like their race, sex, religion, or sexual orientation. Yet that is precisely what the ban on same-sex marriage does.
Winkler leads the gullible reader to believe that the defense of Prop 8 rested squarely on the claim that “the ban on same-sex marriage didn’t discriminate because gays and lesbians weren’t denied any significant benefits.” But, so far as I have been able to tell from a quick review (but far more than Winkler ever did), that claim played no role at all—and certainly not a central role—in the defense of Prop 8. Indeed, a moment’s reflection on Winkler’s part might have caused him to wonder whether it was really plausible that Prop 8 proponents were resting their defense of traditional marriage on the existence of a parallel domestic-partnership system that provided the same rights as marriage. Were Prop 8 proponents, in other words, arguing that same-sex marriage would be constitutionally required in the absence of such a domestic-partnership system? The very suggestion is farfetched.
In support of his mistaken assertion, Winkler hyperlinks (with no further specification) to Judge Walker’s 136-page ruling. On page 8 of that ruling, Walker presents what he understands to be the four basic arguments by Prop 8 proponents in defense of Prop 8. None of the four relies on California’s system of domestic partnerships. On page 9, Walker does assert that Prop 8 proponents argued that Prop 8 doesn’t deny equal protection to same-sex couples “because, among other reasons, California affords such couples a separate parallel institution under its domestic partnership statutes.” But the citation to Prop 8 proponents’ summary-judgment motion that Walker offers in support of his assertion belies his claim. Specifically, on the cited pages, Prop 8 proponents argue instead (as the argument heading puts it) that “Establishing parallel institutions allows California flexibility to separately address the needs of different types of relationships.” Further, in that same summary-judgment motion (page 72), Prop 8 proponents refute plaintiffs’ argument that “by enacting progressive domestic partnership laws and allowing same-sex parenting, California has somehow renounced the compelling procreative interests furthered by the traditional institution of marriage.” In other words, it was plaintiffs, not Prop 8 proponents, who were basing an argument on the fact that California’s domestic-partnership system provides essentially the same benefits and obligations as marriage. Far from denying that there were any significant differences between marriage and domestic partnership, Prop 8 proponents emphasized the important “symbolic” difference (emphasis added):
While the effect of California’s decision to reserve the name of marriage to traditional opposite-sex unions is symbolic, that does not mean that it is insignificant or unimportant. On the contrary, Proposition 8 would not have been proposed or opposed if the names used to describe different sorts of unions did not matter. Nor would Plaintiffs be challenging Proposition 8. True, the name of marriage cloaks traditional, opposite-sex unions with a unique and highly favorable imprimatur that is not available to any other sort of relationship. But the State has plainly legitimate reasons for signaling its special approval and endorsement of such relationships and encouraging people to enter them: the vital interests in procreation and childbearing served by traditional opposite-sex unions simply are not advanced—or at least not advanced to the same extent—by any other type of relationship.
So there is zero conflict between my statement that marriage is a “valuable legal right” (a fact amply established by the reality that many gays and lesbians say that they want marriage redefined to extend that right to same-sex couples) and the argument for Walker’s recusal, on the one hand, and the arguments advanced by Prop 8 proponents in defense of Prop 8, on the other. Prop 8 proponents’ actual defense of Prop 8 rests instead on arguments that the male-female nature of marriage, far from being (in Winkler’s phrase) an “irrelevant characteristic,” is a definitional feature of marriage. Winkler somehow fails even to acknowledge these arguments (much less counter them) as he offers his own simpleminded constitutional reasoning.
2. Winkler’s second (and final) argument in support of his claim that “the effort to recuse Judge Walker exposes the flaws in the case against same-sex marriage” is equally baseless. Here’s his argument:
Implicit in Proposition 8 supporters’ effort to recuse Judge Walker is the notion that, unlike a gay judge who might benefit from marriage, a heterosexual judge would be impartial. But to accept that notion, we must reject another central claim in the case against same-sex marriage: that gay marriage undermines the traditional institution marriage.…
If opponents are right, … it would mean that a heterosexual judge can’t be impartial because he or she would have a stake in the outcome, too. If the judge is currently married or might one day like to be married, he or she would be biased in favor of protecting the institution from the supposedly devastating harm that gay marriage would cause.
One paragraph earlier (in the second paragraph I quote in point 1), Winkler had linked to a post of mine for my statement that marriage is a “valuable legal right.” That phrase was a critical part of my clarifying what Prop 8 proponents’ argument for recusal is and what it is not. Yet Winkler’s argument here somehow ignores the meaning of the very passage from which he was quoting and neglects the threshold element of a “valuable legal right.” He instead wrongly claims that Prop 8 proponents are seeking Walker’s recusal on the ground that he “stood to gain personally from ruling in favor of same-sex marriage.”
As I have explained before (see point 2 here), the reason that the narrow argument for Walker’s recusal clearly does not require the recusal of a heterosexual judge is that the heterosexual judge (except in an extraordinary situation (see 6th paragraph here), in which case recusal would be required) is not deciding his own right to marry, so there is no reason to believe that he has a personal stake in the outcome of the case. (There may of course be alternative bases for the recusal of certain heterosexual judges—see point 3 here.)
Even on its own mistaken terms, Winkler’s argument conflates the question whether same-sex marriage would damage the institution of marriage with the very different question whether it would damage a married judge’s existing marital relationship.
3. As for Winkler’s sloppiness on smaller matters, among other things:
He wrongly states that Prop 8 proponents “have asked a federal appeals court” to vacate Walker’s judgment on account of his non-recusal, even as he hyperlinks to the motion they filed in the Northern District of California.
In claiming that Prop 8 proponents “insist [Walker] was biased against them,” he doesn’t recognize that they are actually invoking the objective standard under section 455(a), which requires that a judge recuse himself when “his impartiality might reasonably be questioned,” whether or not he is actually subjectively biased.
And, in yet another example of his hilarious misuse of hyperlinks, he supports his naked assertion that Prop 8 proponents’ argument for recusal (which he of course mischaracterizes) is “absurd” by stating that “others have correctly recognized” the supposed absurdity. Who are the “others”? As only those who open the hyperlink will discover, he’s referring only to Ted Olson and David Boies, counsel for Prop 8 plaintiffs (whose feeble opposition I’ve already critiqued).
All in all, alas, just the typical incompetent work product that so many law professors routinely generate.