We’ve already boiled down the argument against asking Judge Vaughn Walker to recuse himself from decision Prop 8 because he’s gay to a single line: immutable characteristics such as sexuality do not disqualify somebody from being impartial. But what’s this about Walker having a financial interest in the outcome of his trial?

John C. Eastman takes to the San Francisco Chronicle to insist that because Walker is in a stable committed relationship, one that could lead to him and his partner getting married, and thus benefiting from the tax breaks legalized gay marriage would provide, he must stand down from the bench. Quoting federal law, Eastman notes, a judge must stand down if he “knows that the judge … has a financial … or any other interest that could be affected substantially by the outcome of the proceeding.”

If Judge Walker is indeed in a long-term, same-sex relationship, he certainly has an “interest that could be affected substantially by the outcome of the proceeding” – he and his partner are now permitted to marry! – and that, according to Judge Walker’s own finding, has financial benefits as well. Such conflicts would have required recusal, and cannot be waived by the parties.

If the relationship does not create such a conflict, it nevertheless creates the circumstance “in which the judge’s impartiality might reasonably be questioned.” That ground for disqualification can be waived by the parties, but the judge must “disclose on the record the basis of the disqualification” and then only continue after the parties have agreed in writing to his continued involvement. No such disclosure and agreement occurred in this case.

According to Eastman’s logic, this sets up a grounds to reverse his decision on appeal.

Judge Walker’s failure to disqualify himself or at least to disclose his potentially disqualifying relationship to the parties requires that the opinion in the case be vacated and a new trial conducted before a different judge. In Liljeberg vs. Health Services Acquisition Corp., the Supreme Court held that the original judgment had to be set aside even when the disqualifying relationship only became known to the parties 10 months after the judgment entered in the case had been upheld on appeal. Where an objective observer would have questioned the judge’s impartiality, recusal is required, and the appropriate remedy is to annul the judgment because of the risk of injustice to the parties and of undermining the public’s confidence in the judicial process.

This argument is foolish, and I say this not just because I wholeheartedly support Walker’s decision. While a judge’s possible financial benefits from the outcome of a case are valid reasons to preclude yourself (such as a judge not hearing a case involving a company in which she owns stock), the logic doesn’t apply here — particularly if you look at the very rationale defenders of Prop 8 made: That by legalizing same-sex marriage, opposite-sex marriages would somehow be damaged.

If we accept Eastman’s rationale, that means every heterosexual judge (or maybe only those in stable relationships?) would also have to recuse himself, because he stood to benefit financially from upholding Prop 8, since he would keep the tax benefits of straight marriage while forcing gays to continue funding government expenditures (and his tax breaks) without equally receiving the tax party favors.

Moreover, it is Walker’s status as “paired off” that Eastman zeroes in on. Except when did long-term stable relationships become a precursor to marriage? Two words: Las Vegas.

The enactment of any civil right almost certainly yields economic benefits to the class of people suddenly seeing a wrong turned right, because by definition civil rights seek to end discrimination. As such, Eastman would also have to argue that women, retroactively, shouldn’t have been able to vote on their right to vote because they stood to financially benefit from, uh, the right to vote. Also, female Supreme Court justices voting on abortion rights? Unfair, because if they uphold abortion they also “unfairly” uphold the right not to care for an unwanted child, which are expensive! Also, don’t let male Supreme Court justices vote on abortion either, because if they outlaw it they stand to benefit by taking tax breaks for additional dependents. And remember when blacks and whites were allowed to marry? Let’s not let any black (or white!) judges rule on that one, because guess what: They stood to benefit from their own rulings if they’ve got jungle fever.

Why not just flip a coin? Human involvement is just too prone to human error.

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