Would a Black Judge Have Been Biased in Brown v. Board of Education?

US District Judge Vaughn Walker is the judge who issued the ruling that Prop 8, which bans same sex marriage in California, is unconstitutional. Conservatives are now claiming that he is gay (which is unconfirmed at this point) and that his gayness presents an obvious bias. Furthermore, he should have recused himself from the case because as a gay man he would have a conflict of interest in deciding a case on gay rights.

The obvious question is - would a straight man not have a bias? Prop 8 would maintain straight people's monopoly on marriage. Wouldn't a straight person have a conflict of interest in deciding a case about whether they get to have more rights than other people in society? Presumably a lot of straight people voted in California to take away the right of gay people to get married - wouldn't they be biased in favor of protecting their own rights and taking away the rights of gays in California?

How about a devoutly religious judge? If that person believes it is an abomination against God to have gay people get married, wouldn't that create an obvious bias? Should we look into how religious each judge is before we let them decide cases like this? How about Antonin Scalia, who has on many occasions talked about how deeply religious he is? Should he be recused if this case reaches the Supreme Court? Clarence Thomas? Samuel Alito? How many justices will be left to decide this case?

Now, let's think about it a different way. What if there was a black justice on the Supreme Court when they were deciding Brown v. Board of Education? Would he be biased in favor of having the same rights as white Americans? Should he have stepped down from the case because he would obviously want the same constitutional rights as any other American? Bias!!

Of course, there was a black man in the courtroom at the time. The man who was the winning attorney on Brown v. Board of Education and would later become the first ever African-American justice on the Supreme Court - Thurgood Marshall. Should the court have told him that he couldn't litigate the case because it would be biased of him to want the same rights as white people?

Should Marshall have also recused himself from every case that involved race when he was on the Supreme Court? If so, why did the white justices get to rule on those cases?

As you can see, although the bias argument might seem appealing at first blush to some, it is quite absurd when you break it down. If you're not already convinced, let me give you one last example. What if California decided to take away women's right to vote - could a female justice not rule on that case because they would be biased in favor of keeping their own constitutional rights?

But you don't have to worry about these absurd right-wing arguments for much longer because conservatives will lose this battle, as they have lost every right civil rights battle they have ever fought in this country. As I explain here:

And as far as whether being gay is an abomination and ruins the institution of marriage, I want you to think about this:

As Judge Walker meticulously explained, there are no rational arguments in favor of denying gay Americans the same rights that straight Americans enjoy. Only irrational ones, like the one that says that it is biased for a gay man in this country to ask for equal protection under the law.

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Would a Black Judge Have Been Biased in Brown v. Board of Education?

US District Judge Vaughn Walker is the judge who issued the ruling that Prop 8, which bans same sex marriage in California, is unconstitutional. Conservatives are now claiming that he is gay (which is unconfirmed at this point) and that his gayness presents an obvious bias. Furthermore, he should have recused himself from the case because as a gay man he would have a conflict of interest in deciding a case on gay rights.

The obvious question is - would a straight man not have a bias? Prop 8 would maintain straight people's monopoly on marriage. Wouldn't a straight person have a conflict of interest in deciding a case about whether they get to have more rights than other people in society? Presumably a lot of straight people voted in California to take away the right of gay people to get married - wouldn't they be biased in favor of protecting their own rights and taking away the rights of gays in California?

How about a devoutly religious judge? If that person believes it is an abomination against God to have gay people get married, wouldn't that create an obvious bias? Should we look into how religious each judge is before we let them decide cases like this? How about Antonin Scalia, who has on many occasions talked about how deeply religious he is? Should he be recused if this case reaches the Supreme Court? Clarence Thomas? Samuel Alito? How many justices will be left to decide this case?

Now, let's think about it a different way. What if there was a black justice on the Supreme Court when they were deciding Brown v. Board of Education? Would he be biased in favor of having the same rights as white Americans? Should he have stepped down from the case because he would obviously want the same constitutional rights as any other American? Bias!!

Of course, there was a black man in the courtroom at the time. The man who was the winning attorney on Brown v. Board of Education and would later become the first ever African-American justice on the Supreme Court - Thurgood Marshall. Should the court have told him that he couldn't litigate the case because it would be biased of him to want the same rights as white people?

Should Marshall have also recused himself from every case that involved race when he was on the Supreme Court? If so, why did the white justices get to rule on those cases?

As you can see, although the bias argument might seem appealing at first blush to some, it is quite absurd when you break it down. If you're not already convinced, let me give you one last example. What if California decided to take away women's right to vote - could a female justice not rule on that case because they would be biased in favor of keeping their own constitutional rights?

But you don't have to worry about these absurd right-wing arguments for much longer because conservatives will lose this battle, as they have lost every right civil rights battle they have ever fought in this country. As I explain here:

And as far as whether being gay is an abomination and ruins the institution of marriage, I want you to think about this:

As Judge Walker meticulously explained, there are no rational arguments in favor of denying gay Americans the same rights that straight Americans enjoy. Only irrational ones, like the one that says that it is biased for a gay man in this country to ask for equal protection under the law.

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Voting Out the Constitution

People usually remember the 1960s as a time of great strife over civil rights. If you were alive back in the day, the images of police dogs ripping into lines of civil rights marchers or white-sheeted thugs dancing around a burning cross is still a chilling thing and proof that America was indeed going through wrenching social change.

Many would also like to believe that the country has made great strides in the interim, and we have. But, there’s more to accomplish and the nation now finds itself spending much of its energy on fighting to simply hold onto the advances already made. Civil rights advancement is now threatened by organizations and morally dishonest politicians bent on carrying us back to 1864.

Yesterday’s decision to strike down California’s Prop 8 anti-gay marriage law was sound. The judge did an impressive job of listing all the factual and legal reasons – 80 in all – showing that the law is unconstitutional. A improvement to celebrate, but also an event that highlights anti-civil rights crudaders’ thinking.

Tim Wildmon of the sarcastically named American Family Association reacted with shocking vitriol, calling the court’s decision, “a tyrannical, abusive and utterly unconstitutional display of judicial arrogance.”

Wildmon Is Has a Queer Notion
Wildmon believes one of the principles at stake is ignoring the California voters, which he sees as unconstitutional. In doing so, Wildmon – who uses the 10th Amendment as a fig leaf himself – introduces the queer notion that the Constitution is up for a vote whenever you don’t like what it says.

Similar to the rabble rousing for amending the 14th Amendment in the immigration battle, what Wildmon is proposing is that the Constitution – designed to be difficult to amend – should change to bend to the will of the latest ideological blowhard to come on the scene.

Mr. Wildmon, I ask you…if Californians voted to outlaw heterosexual marriage would you express the same fondness to the validity of their vote?

Wildmon also believes the “tyrannical and abusive”, Bush-the-Elder-appointed, judge should have recused himself from the case.

“It’s also extremely problematic that Judge Walker is a practicing homosexual himself, ” Wildmon said. “He should have recused himself from this case, because his judgment is clearly compromised by his own sexual proclivity.”

What I find “problematic” about Wildmon’s charge is that he is exhibiting his  own “proclivity” to act as a heterosexual, homophobic, quasi-religious leader. In other words – or more correctly Wildmon’s – “[Wildmon] should have recused himself from this case, because his judgment is clearly compromised by his own sexual [and religious] proclivity.”

I suspect the only judge Wildmon would find acceptable is an ordained Christian minister with a demonstrated track record of ignoring the Constitution in favor of a Christian Sharia-like theocracy – or a teabagger – whichever pinhead stepped forward first.

Americans are becoming increasingly unfamiliar with the basic tennents of the Constitution.They apparently believe that any hot head’s cause can simply be enacted by a simple vote. The Constitution is not the “McConstitution”. You can’t vote cheeseburgers off the menu because you don’t like them.

They believe that if there is a “war” on, the President, under no one’s authority other than his own, is permitted to suspend the Constitution’s guarantees against warrantless search or to hold prisoners indefinitely without charge.

Many Americans believe that the Constitution guarantees them freedom of religion, but also support depriving anyone other than Christians (they’re aren’t too hot on the Catholics either) of their similar freedom. Don’t like mosques too close to your shrine? Protest and file suit as Pat Robertson’s minions have done, but don’t be honest enough to mention that if it had been a Christian church you would’ve been praising the idea like it came from, well, God.

From Constitutional Ignorance, Instability Flows
From Constitutional ignorance, great instability flows. Unfortunately, those with such beliefs fail to see the unintended blow back from their muddled position.

Teabaggers and their similar-thinking ilk, like to wear tri-cornered hats and screech about keeping Big Gummint off their backs. If allowing someone to marry the person of their choosing is too much government involvement, then why isn’t government being on a gay person’s back equally bad?

Bush the Lesser did much to chip away at many civil rights during his reign and in areas like the conduct of our misbegotten wars and gay rights,  The Messiah™ continues walking the same swampy path.

One day, the blow back from their actions will come to haunt them and the people who cheered them. One day an administration will take office that isn’t so tolerant of their cavalier positions and decides to warrantlessly tap their phones, close their churches, or collect deep background on twerps like Wildmon.

And when they do, they’ll claim the same Constitutional protections because they changed the Constitution to allow it.

Cross posted at The Omnipotent Poobah Speaks!

 

 

Broad coalition stands up for marriage equality in Iowa

The Iowa Legislature begins its 2010 session this week, and about 200 people attended One Iowa's Equality Red Blue Purple event on Sunday in Des Moines. A coalition of more than two dozen statewide organizations, including major labor unions, oppose a constitutional amendment to rescind same-sex marriage rights in Iowa. Republicans as well as Democrats have signed on as co-chairs of Equality Red Blue Purple, and dozens of local organizations have joined the coalition too. The full list of co-chairs and coalition members can be viewed here.

On Tuesday, supporters of marriage equality plan to deliver "over 15,000 postcard petitions to legislators in every district in the state," according to One Iowa's Justin Uebelhor. Opponents of same-sex marriage plan a large rally at the state capitol on Tuesday as well.

This week One Iowa's television ad, "This Place," will run in the Des Moines market. The ad was created soon after the Iowa Supreme Court's ruling last April. It depicts marriage equality as consistent with Iowa traditions of fairness and protecting our freedoms under the state constitution.

Click here to donate to keep this ad on the air for an extra week.

Democratic legislative leaders have vowed not to allow floor votes on a constitutional amendment to ban same-sex marriage during the 2010 legislative session. However, Republicans will try various procedural tricks to force a vote on the issue. I expect Democratic lawmakers to stand firm against a marriage amendment, and I hope that they won't cop out when confronted by constituents who want to ban gay marriage.

On a related note, a lawsuit against California's Proposition 8, which banned same-sex marriages, goes forward this week in federal court. The lead attorneys are David Boies and Ted Olson, who were on opposite sides during the Bush v Gore case that decided the 2000 presidential election. Writing in Newsweek, Olson laid out "The Conservative Case for Gay Marriage," which is worth a read.

However, not all advocates of marriage equality support the strategy of appealing Prop 8 in federal court. At Daily Kos, SoCalLiberal laid out the argument against pursuing this lawsuit, favoring an effort to repeal Prop 8 at the ballot box in 2012.

8: The Mormon Proposition (Pre-Sundance Update)

This past May, I caught up with documentary filmmaker Reed Cowan, who didn't shy away from answering some pointed (and personal) questions about 8: The Mormon Proposition. As the first NYU grad in my family's six generations of Mormons, go figure that I'd be personally interested in both Mormonism and film (nevermind Mormons on film!).  In other words, since that initial interview with Reed, I've been anxiously hoping that he'd keep me in the loop as the film progressed.  After bugging Reed for an update, he's now brought me up to speed:

CB: Since we last spoke, I've heard through the grapevine that a certain Dustin Lance Black provided the narration for 8:TMP, and Bruce Bastian is now on board as Executive Producer.  How did that happen?

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