Guess What’s Not a Conflict of Interest

From the Los Angeles Times earlier today:

A federal judge questioned Monday whether the judge who presided over the Proposition 8 trial had a duty to disclose his same-sex relationship if he did not intend to marry his long-term partner.

U.S. District Chief Judge James Ware said during a court hearing that there was no evidence that retired Judge Vaughn R. Walker ever wished to marry his partner, a physician.

Sponsors of Proposition 8, the 2008 ballot measure that resurrected a ban on same-sex marriage, argue that Walker’s ruling against the marriage ban should be wiped from the books because his long-term relationship created an interest in the outcome of the case.

Ware, who is African American, said the Proposition 8 case was the first to test the need for a judge’s recusal in a case in which the judge is gay. Ware noted that “the same kind of struggle” has affected female judges and jurists who are racial minorities.

“This is the first case where same-sex relationship is the subject for disqualifying a judge, so it is important that we treat it seriously and get it right,” Ware said.

While I appreciate Judge Ware’s cautious approach, let’s be clear here. If the court were to determine that Judge Walker should have recused himself from the lawsuit challenging the constitutionality of California’s Proposition 8 ballot initiative simply because the judge belongs to a class of individuals that might benefit from that ruling, the court would be setting a fairly absurd precedent. Granted, Prop 8’s supporters have tried to argue that the issue is a narrow one: It’s not that Judge Walker is gay, it’s that he’s involved in a long-term, committed, monogamous relationship with another man. Therefore, the argument goes, his ruling striking down Prop 8 could have benefited Judge Walker and his partner directly – if the decision is ultimately upheld, they could get married.

But how is that any different from any case involving fundamental civil rights? If a lawsuit challenges a particular government policy or business practice on the grounds that it discriminates against, say, African Americans or women, wouldn’t all African Americans or all women benefit directly if that policy or practice is outlawed? So, would all African American judges, or all women judges, be precluded from handling such a case? That’s really the implication of the present challenge to Judge Walker’s ruling in the Prop 8 case.

Or, consider this. In McDonald v. Santa Fe Transportation Co., 427 U.S. 273 (1976), the United States Supreme Court considered whether the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981, prohibited racial discrimination against white employees of the defendant company when both the District Court and the United States Court of Appeals for the Fifth Circuit had dismissed the white employees’ claims. With regard to the Civil Rights Act of 1964, the Court held:

Title VII of the Civil Rights Act of 1964 prohibits the discharge of “any individual” because of “such individual’s race,” § 703(a)(1), 42 U.S.C. § 2000e-2(a)(1). Its terms are not limited to discrimination against members of any particular race. Thus, although we were not there confronted with racial discrimination against whites, we described the Act in Griggs v. Duke Power Co., 401 U. S. 424, 401 U. S. 431 (1971), as prohibiting “[d]iscriminatory preference for any [racial] group, minority or majority” (emphasis added). Similarly the EEOC, whose interpretations are entitled to great deference, id. at 401 U. S. 433-434, has consistently interpreted Title VII to proscribe racial discrimination in private employment against whites on the same terms as racial discrimination against nonwhites, holding that to proceed otherwise would “constitute a derogation of the Commission's Congressional mandate to eliminate 11 practices which operate to disadvantage the employment opportunities of any group protected by Title VII, including Caucasians.” EEOC Decision No. 731, 7 FEP 1326, 1328, CCH EEOC Decisions 6404, p. 4084 (1973). This conclusion is in accord with uncontradicted legislative history to the effect that Title VII was intended to “cover white men and white women and all Americans,” 110 Cong.Rec. 2578 (1964) (remarks of Rep. Celler), and create an “obligation not to discriminate against whites,” id. at 7218 (memorandum of Sen. Clark). See also id. at 7213 (memorandum of Sens. Clark and Case); id. at 8912 (remarks of Sen. Williams). We therefore hold today that Title VII prohibits racial discrimination against the white petitioners in this case upon the same standards as would be applicable were they Negroes, and [their fellow employee ] white.

427 U.S. at 278-80 (footnotes omitted; emphasis supplied).

But the issue was somewhat more complicated with regard to the Civil Rights Act of 1866, which provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

42 U.S.C. § 1981(a) (emphasis supplied). Nonetheless, the Supreme Court in McDonald reviewed the legislative history of the act and rejected the employer’s argument that “§ 1981 unambiguously limits itself to the protection of nonwhite persons against racial discrimination,” 427 U.S. at 286, holding:

[O]ur examination of the language and history of § 1981 convinces us that § 1981 is applicable to racial discrimination in private employment against white persons.

427 U.S. at 286-87.

But, so, the point is, the McDonald decision held that both the Civil Rights Act of 1964, which prohibits, among other things, employment discrimination on the basis of race, and the Civil Rights Act of 1866, which prohibits discrimination in contracts on the basis of race, applied equally to white and black people – a ruling which conferred direct benefits on all white Americans. Yet no one even considered arguing that the white Justices on the Supreme Court should have recused themselves just because they, like all other white folks, stood to gain by their own ruling.

I mean, that would have been preposterous. Right?

Oh, and one other thing about the McDonald decision. The majority opinion was written by Justice Thurgood Marshall, the first African American to sit on the Supreme Court.

Which tells you something about how belonging to a particular demographic group isn’t, generally speaking, a conflict of interest, even in a civil rights case.

So, no, Judge Walker’s decision isn’t tainted by virtue of his being gay or being in a committed relationship … any more that it would have been tainted if he were straight and married. End of, as the English like to say.

© 2011 David P. von Ebers. All rights reserved.