New Jersey Governor Chris Christie has reportedly said that Bruce Harris, the first openly gay man to be nominated to the state’s supreme court, will not rule in same-sex marriage cases.
Christie told reporters that Harris, the Republican mayor of Chatham, had already said that he would recuse himself in such instances.
The governor, 49, said today that Harris told him that he has advocated for gay marriage personally and as a politician.”
If confirmed to the court, he would recuse himself from that matter because he did not want there to be the appearance of bias on his part on that issue,” Christie told reporters. “My perspective on that issue was to put it aside because he’s not going to rule on that.”
Gay rights groups lauded Gov. Christie’s nomination of Harris when it was announced last week.
Interestingly, the judicial ethics behind whether an openly gay judge in a relationship can preside over a same-sex marriage case was recently tested.
California’s Proposition 8, the ballot initiative that amended the state’s constitution to ban same-sex marriage, was overturned by federal Judge Vaughn Walker in 2010. Defendant intervenors attempted to have that ruling vacated on grounds that Walker was in a gay relationship at the time, claiming that he had a particularized interest in the outcome.
However, this argument found little favor with District Court Judge James Ware. Ware refused the motion in June of last year, saying that, without explicit proof of bias, Vaughn Walker’s private life is of no more import than the race or sex of a judge, and if it were to be held as such it would set a dangerous precedent for all minority judges.
Similarly a three member 9th Circuit Court panel seemed skeptical of Protect Marriage’s argument that Vaughn Walker had a particularized interest in the outcome of the trial because of his being gay. The panel has yet to deliver its ruling on this issue, however. You can read more on that here.
However, and as mentioned above, it has been pointed out that Harris has a history of actively advocating for same-sex marriage. This draws a distinction between Harris being gay, which would not be the problem, and his having supported the legalization of same-sex marriage, which could be classed as a particularized interest.
This, on the face of it, is a reasonable assertion: that the issue is not whether Harris could rule impartially based on the legal issues at hand, but rather whether he should rule in such a case if public confidence in the impartiality of that ruling is to be maintained. This is, of course, a standard concern for judicial conduct.
Still, some questions may remain. Would other judges who aren’t gay be held to the same standard? For instance, and keeping a narrow focus on the issues at hand, should every judge that has publicly advocated for the so-called “traditional” definition of marriage recuse themselves?