National Review Online blogger Ed Whelan is still arguing that the decision by Judge Vaughn Walker to strike down California's ban on same-sex marriage must be thrown out because Walker is a gay man in a long-term relationship.
Last week, I documented Whelan's incredible admission that, if his argument is correct, a gay judge assigned to hear a same-sex marriage case must either disclose "intimate details" about his or her personal life or "[ask] the court clerk to reassign the case" to another judge.
As detailed by the lawyers opposed to the California ban on same-sex marriage, if Whelan's theory were correct, a gay judge who did not silently reassign the case would have to answer questions about "how long term, or how serious" the relationship was and "the judge's interest in marriage." The person who is in a relationship with a judge might have to answer similar questions.
But even more astoundingly, the defenders of California's ban on same-sex marriage are making the same argument in their brief (which, according to Whelan, "systematically dismantles" the other side's argument). Here is the relevant excerpt from the brief:
Plaintiffs argue that the statutory disclosure duty "would require federal judges to publicly disclose intimate details of their private lives," Doc # 779 at 23, but of course any judge who does not wish to make "a full disclosure on the record," 28 U.S.C. § 455(e), of personal facts that bear on his ability to sit in a case always has the option of simply asking the clerk to reassign it to another judge.
As I've previously detailed, this argument is odious on its own, but it's not even correct on the law. As the opponents of the same-sex marriage ban say: "Judges have a duty to sit and decide cases unless there is a legitimate reason to recuse." Thus, if Whelan and the defenders of the ban are correct, a gay judge assigned to hear a same-sex marriage case 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, length of the relationship, seriousness of the relationship, 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.