Perry et al v. Schwarzenegger et al

Filing 780

Declaration of Enrique A. Monagas in Support of #779 Opposition/Response to Motion filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G, #8 Exhibit H, #9 Exhibit I)(Related document(s) #779 ) (Olson, Theodore) (Filed on 5/13/2011)

Exhibit C

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Wednesday, March 10, 2010

Sexual Orientation Singled Out for
Scrutiny
By Margaret Russell
It is both newsworthy and valuable to have openly gay and lesbian judges but not
because their presence will dictate any specific legal outcomes. Sexual orientation, like
race, gender, and other categories of identity, is simply one facet of the human
complexity of all individuals on the bench. The Hon. Deborah A. Batts, the first and only
open lesbian on the federal bench, said of her historic appointment by President Bill
Clinton in 1994: "I'm a mother, I'm an African-American, I'm a lesbian, I'm a former
professor. If people assume any one of these aspects is going to predominate, it would
create a problem."
Why, then, is it important to have openly gay and lesbian judges? This question reemerged last month with the publication of two unrelated high-profile news stories in
the same week. The first reported on what the story described as the "non-issue,"
"open secret" of the Proposition 8 (same-sex marriage) case in San Francisco federal
district court: that its presiding judge, the veteran jurist Hon. Vaughn Walker, is openly
gay. The second story reported on Senator Charles Schumer's recommendation of
Daniel Alter to a New York federal district court judgeship; if confirmed, Alter will be the
first openly gay male appointed to the federal bench. An increased number of openly
gay and lesbian judges is likely to benefit the legitimacy of our justice system in several
ways, including fostering the public's acceptance of diversity, and recognizing
excellence in the legal profession regardless of sexual orientation. Unfortunately, these
developments have led some to question the ability of gay and lesbian judges to be
fair, particularly in cases involving issues of the law regarding sexual orientation (e.g.,
the Proposition 8 trial).
It would be troubling and unjust if anyone assumed that gay and lesbian judges'
competence would somehow be compromised by their sexual orientation. Presumably,
every judge has a sexual orientation, as surely as he or she has a race, gender, and
ethnicity. To single out only those of minority sexual orientation for scrutiny fosters an
unspoken assumption that heterosexual judges are by definition more "neutral" and

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"impartial" on issues of sexual orientation and the law.
This invisible privilege of "neutrality" accorded to dominant groups was brilliantly
challenged a generation ago, when pioneering African-American judges on the federal
bench faced disqualification (recusal) motions filed by defense lawyers in civil rights
cases. In these cases, lawyers had filed motions under 28 U.S.C. Sections 144 and
455, alleging that the judges manifested "personal bias or prejudice" or that their
"impartiality might reasonably be questioned." In Pennsylvania v. Local Union 542,
International Union of Operating Engineers (1974), the Hon. A. Leon Higginbotham, the
first black appointed to the federal bench in Philadelphia, faced a motion to recuse
based on his identity as a black judge and his civil rights background. His opinion
denying the motion was lengthy and trenchant: "Perhaps, among some whites, there is
an inherent disquietude when they see that occasionally blacks are adjudicating
matters pertaining to race relations, and perhaps that anxiety can be eliminated only by
having no black judges sit on such matters or, if one cannot escape a black judge, then
by having the latter bend over backwards to the detriment of black litigants and black
citizens and thus assure that brand of 'impartiality' which some whites think they
deserve.... Since 1844...black lawyers have litigated in the federal courts almost
exclusively before white judges, yet they have not urged that white judges should be
disqualified on matters of race relations.... If blacks could accept the fact of their
manifest absence from the federal judicial process for almost two centuries, the plain
truth is that white litigants are now going to have to accept the new day where the
judiciary will not be entirely white and where some black judges will adjudicate cases
involving race relations." Judge Higginbotham, later appointed to the 3rd Circuit U.S.
Court of Appeals, served on the federal bench for nearly three decades .
Similarly, the Hon. Constance Baker Motley, the first African-American female
federal judge, confronted a recusal motion in Blank v. Sullivan and Cromwell (1975), a
case against law firms for sex discrimination. The motion argued that her background
as a female lawyer rendered her less likely to be impartial in evaluating claims of sex
discrimination against female lawyers. She rejected the motion, asserting: "[I]f
background or sex or race of each judge were, by definition, sufficient grounds for
removal, no judge on this court could hear this case, or many others, by virtue of the
fact that all of them were attorneys of a sex...." Judge Motley served on the federal
bench for nearly four decades.
Some asserted that Judges Higginbotham and Motley, as pioneering civil rights
advocates in their pre-bench legal careers, lacked the "appearance of impartiality"
required of a judge presiding over a civil rights case. Yet what would the requirement of
the absence of pre-bench civil rights work mean to our understanding of who is fit to
serve as a judge? Daniel Alter, the aforementioned first openly gay male nominee, is
now the National Director of the Civil Rights Division of the Anti-Defamation League. It
would be disturbing to think that his work on behalf of civil rights would be seen as a
disqualifier.
So, in the end, what will it mean to have diversity of sexual orientation on the bench?
In a specific sense, it is impossible to know because the judiciary is still so non-diverse.
However, the observations of pathbreaking African-American judges such as

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Higginbotham and Motley are instructive; as they saw it, no one should have to
repudiate his or her identity or heritage in order to be seen as impartial. In fact,
"impartiality" itself does not mean being shorn of identity and experience; judging is an
inherently human act. As noted U.S. Supreme Court Justice Benjamin Cardozo wrote:
"We may try to see things as objectively as we please. Nevertheless, we can never see
them with any eyes except our own."
Professor Margaret M. Russell teaches civil procedure and constitutional law at
Santa Clara University School of Law. Her book, Freedom of Assembly and Petition:
The First Amendment, Its Constitutional History, and the Current Debate will be
published by Prometheus Books in spring 2010.

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