Regarding marriage rights, these have always been decided via
federal courts because of the involvement of the federal due process clause, says
Douglas NeJaime, an associate professor of law at Loyola University in Los Angeles.
In
the middle of the 20th century, federal courts -- and eventually the
Supreme Court -- ruled that state laws restricting interracial marriage
were unconstitutional, NeJaime continued. So even though marriage
law is indeed traditionally considered state territory, "it
doesn't mean states can regulate it outside the bounds of federal
constitutional guarantees."
Regarding the judge's sexuality, Adam Winkler -- a professor of law
at UCLA -- says the argument is "absurd." He compares the argument to
one used against black judges when they were first appointed to federal
court positions. They were often accused of favoring black plaintiffs --
therefore qualifying for a recusal -- and insinuating that white judges
were the only neutral candidates. "Who do they want to rule on the case?" questions Winkler. "A heterosexual person with strong Catholic
beliefs? Are they neutral?"
It warrants mentioning, however that when it was first announced that Walker had been assigned to the
case, gay rights activists expressed concern that he was too
conservative to impartially consider gay issues.
Loyola University's NeJaime also believes the argument has no legal bearing. "We all have
sexualities. ... If sexuality is the marker that determines one's bias
here, then everyone would have a bias. That can't be true."
If there was a legitimate conflict of interest, the concern should have been raised and explored during the trial, continues DeJaime. It's too late to pull the bias argument now.
The professors all agreed the
impeachment efforts won't fly with Congress. If, for some reason, it does, Chemerinsky thinks "it'll be the gravest threat to judicial
independence in American history."
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