Start making sense

I was going to title this response to your latest post "Stop Making Sense" as a shout-out to the Jonathan Demme film about the Talking Heads. But I decided that gave Professors Eastman and Bradley too much credit. The short asnswer is that I don't think that either of them are making any sense.

If I understand the argument, Judge Walker, who may or may not be gay, would not, if he is gay, have to recuse himself because he is gay. He would, however, have to recuse himself because, as the two professors put it, he "'attends bar functions with a companion, a physician,' and may therefore be in a stable homosexual relationship of the kind that could lead to marriage". Judge Walker may be doing something that could lead to something else so he should recuse himself because of the combination of those two contingencies. By that logic we could say "Judges may make a salary that allows them to save money that could lead to judges opening savings accounts at banks so judges should recuse themselves from any case involving banks." Not just banks where they, you know, actually have an account, but all banks. Or to use the Loving v. Virgina comparison, "The married justices may get divorced and could then have an interest in marrying a woman of a different race so the married justices should recuse themselves."

Assuming their supposition that a gay judge wanting to get married would have to recuse himself, and assuming that Judge Walker is gay and has a companion, why does it follow that he has an interest in getting married? Lots of heterosexuals are in long-term relationships but don't intend, or want, to get married. Is there any evidence, other than the fact that he may have an implied date on Saturday night, that supports the argument that Judge Walker wants to get married?

Presumably, if Judge Walker was inclined to marry a man, perhaps a physician, he could have done so in 2004, when San Francisco was granting marriage licenses to gay people. He could also have done so in the wake of the California Supreme Court decision in In re Marriage Cases (43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384 (2008), when the California Supreme Court held that California could not forbid same sex marriages and ordered county clerks to start issuing marriage licenses gay couples who wished to marry. I suppose he could have also travelled to Vermont, Connecticut, New Hampshire, Iowa, or Massachusetts and gotten married in one of those states if he wished to get married. The fact that he didn't suggests that he isn't particularly interested in marrying. Accordingly, per Professors Bradley and Eastman, he doesn't need to recuse himself.