The PJ Tatler

The Ethical Hole in the California Gay Marriage Decision

Considering all the Leftist angst over Justice Thomas’ “failure” to recuse himself from the Obamacare litigation because his wife (gasp) publicly criticized the legislation, it’s odd none of the liberals celebrating the Ninth Circuit’s decision on California’s Proposition 8 has mentioned the actual and real ethical issues that case presented Judge Stephen Reinhardt.

Reinhardt, author of the majority panel opinion, refused to remove himself from this case despite the fact that his wife, Ramona Ripston, was the longtime head of the American Civil Liberties Union of Southern California.  As the supporters of Proposition 8 laid out in their recusal motion, not only did the attorneys for the plaintiffs who originally challenged the Proposition consult with Ripston before filing suit, but the ACLU/SC represented amici and proposed intervenors in the case.

The ACLU/SC proclaimed its “lead role” in combating Proposition 8, and Ripston publicly “rejoice[d]” over the district court decision her organization had participated in.   She retired effective Feb. 15, 2011, but not before the ACLU/SC had taken all of these actions.  Her husband and a second federal judge did exactly what the ACLU/SC’s brief urged the courts to do – uphold the district court’s opinion throwing out Proposition 8.

None of this is any surprise.  I was at a dinner recently with a group of lawyers involved in appellate work.  The question arose as to who is the most radical, left-wing activist in the federal courts.  Out of the almost 900 judges in the federal court system, Reinhardt’s name immediately floated to the top of the list.  This is, after all, the same federal judge whose decisions, when they actually get to the Supreme Court, are almost always overturned.

But as Reinhardt himself has said, the Supreme Court “can’t catch ‘em all.”  So he can all too often ignore the rule of law and get away with his activism and mutilation of the Constitution to impose his extra-legal agenda through the power of the courts.  The California case needs to get to the Supreme Court, so the highest court in the land can strike down a case in which out-of-control judges have said that the people of California cannot change – even through constitutional amendment – a  judicially-created right that has no historical or legal basis whatsoever.