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Here’s one for you:

1) According to reports, it is possible that Judge Walker may have had a personal stake in the outcome of Perry v. Schwarzenegger. Newspapers are reporting that Judge Walker is gay, and has a long term partner. Therefore, the two may have stood to benefit directly and personally by the ruling. They could now marry.

2) It may not even matter that they don’t want to marry. The perception of impartiality is there.

3) Justice John  Roberts, and others at the Supreme Court, are big on narrow rulings, and avoiding Constitutional questions if the underlying case has procedural or other flaws.

3) If the Ninth Circuit affirms, as expected, the Supreme Court may simply hold that the judge had an interest in the case, and should have recused himself. As a result, it may remand to the District Court for an entirely new trial, with a new judge. 

And the whole things starts again.

Question: Does the Supreme Court have the power to send back on its own motion, or must one of the parties raise the issue? I assume the Court has the power.

Code of Judicial Conduct for Federal Judges:

Canon 3

C. Disqualification

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:

(c) the judge knows the judge…or the judge’s spouse…has…any other interest that could be affected substantially by the outcome of the proceeding;

The fact that the Judge was gay was not in and of itself a reason for recusal. The test is whether the judge stands to gain something personally by the outcome of the case. So a gay judge may properly rule on a case involving gay issues, so long as he does not stand to benefit directly and personally. Just as a black judge may rule in civil rights cases, and a woman may rule in gender discrimination cases.

The argument is often made that a heterosexual judge is just as “biased” because he is a member of the class of persons who has a stake in the case, just as gay persons have a stake in the outcome. But recusal is not required as a result of being a member of an interested class. It is required when the benefit that may result is personal.

In almost every gay marriage case, a heterosexual judge would not stand to benefit personally by the outcome. If he were already married, it would not affect his personal ability to marry, and if he were not married, it still would not affect his ability to marry. However, if he had a gay son or daughter, that might trigger the recusal requirement.

One thing to notice – the direction in Canon 3 is not “Should” disqualify himself. It is “Shall”.

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