Judge Walker recently ruled that California’s Proposition 8 is unconstitutional. For those who have been watching Jersey Shore and not the news, Proposition 8 banned same sex marriage in California. The proposition had passed with 52% of the vote. Not surprisingly, those who are opposed to same sex marriage have been quick to argue against this ruling.
One argument is based on the view that a judge should not undo the will of the people. Sarah Palin, for example, made a point of criticizing how the third branch of government had done just that.
This line of argument does have a certain appeal. After all, having a single person’s decision override the decision of 52% of those voting would seem to run counter to the very notion of democracy. After all, one might argue, whatever the majority (however slim) decides must be followed by everyone. Majority rule, one might say, trumps everything.
However, unfettered majority rule is neither the reality nor is it desirable. As Mill argues in his writing on liberty, the tyranny of the majority is something that must be guarded against in a free society.
One way to look at this is to note that while majority rule is a core value, it is not the only value. There are other values, such as freedom, that must be defended against even the will of the majority. To use an example, even if a majority of people voted to restore slavery in the United States, this should not be allowed on the grounds that it would be a gross violation of the right to liberty.
Changing gears to the legal and political aspect of the matter, there is the fact that the states are obligated to obey the Constitution (based on the agreement to do so). This means that even a majority in a single state lacks the legal right to pass laws that violate the Constitution. True, the Constitution can be changed-but not by a single state.
As such, it is not a single person’s decision that is overriding the will of the majority. Rather, it is the constitution, which was duly ratified by the states, that is overriding the will of a majority in one single state. Thus, the will of the people has not been violated by this decision.
A second argument is that because the judge is openly gay he is biased in the matter and hence should not be ruling on the proposition.
On the face of it, this argument seems to be a mere ad hominem. It could also be seen as absurd. After all, the same sort of reasoning could be applied to a judge ruling on, for example, on an environmental issue: “the judge breaths air, so she is biased in favor of clean air.” Someone might even point out the obvious parallel: if a gay judge must be biased in favor of same sex marriage, then it would seem to follow that a straight judge must be biased against it. As such, we would need a judge with no sexual orientation at all to rule on this matter.
However, the bias argument does merit some consideration. Since the judge is apparently involved in a stable relationship and might want to get married, his ruling has the potential to benefit him personally. Perhaps this is comparable to having a judge who owns considerable stock in a company presiding over a case involving that company. In that case, the judge would have a clear conflict of interest that could very well lead to a biased judgment.
Of course, there are situations in which a judge might benefit from a ruling and yet not be subject to a reasonable charge of bias. For example, a judge who really likes snack foods might uphold a law that prevents snack food companies from selling products containing a dangerous chemical. While it is clearly in his interest to have his snacks untainted, this hardly seems to be a case of bias.
As another example, imagine a conservative judge who ruled against a liberal law. Since he is conservative, it might be suspected that his ruling was based on a conservative bias and not based on the law. As such, if a gay judge should not rule on a law banning gay marriage, then conservative judges should not rule on liberal laws. After all, they would be biased.
To use an even better example, imagine an Hispanic judge who rules against a law that bans Hispanics from living in a particular town. While she might be inclined to oppose the law because she is Hispanic, it would be odd to challenge such a ruling on the grounds of bias since it seems to be well grounded in anti-discrimination law. However, if the judge made it clear that her decision was based solely on her being Hispanic and not on the law, then the charge of bias would stick.
Turning back to same sex marriage, a key question is this: did Walker base his ruling on constitutional grounds or was it based primarily on his (alleged) desire to get married? If his reasoning was based on constitutional grounds, then the charge of bias would seem to be a mere ad hominem. However, if evidence can be found that his ruling was based primarily on his own desires, then his judgement would be biased.
This seems to be a reasonable test for bias. To use an analogy, imagine that a student gets an F on a paper in my class. He then accuses me of being biased against him because he wrote a paper about how philosophy and philosophy professors are useless. That is, I failed him because I do not like him.
On the face of it, a philosophy professor would take a negative view of such a position. However, the mere fact that I might take issue with such a position does not suffice to show bias. What would be needed is evidence that the paper was graded incorrectly (that is, the paper is better than an F) and that this unfair grading was based on my disliking him.
If the paper were examined by an appropriate committee and judged to be of F quality, then the claim that I was biased would be effectively refuted. Even if the paper were found to be, for example, of better than F quality this would not be enough to establish bias. After all, I might just be a hard grader. Determining that I acted from bias would require comparing the paper to other papers in the class. So, if all papers of comparable quality received the same grade, this would be evidence of a lack of bias.
Thus, the real issue is not the judge’s sexual orientation. The real concern is whether the ruling is properly grounded or not.
