Religion & Law

ND Law Prof. Gerard Bradley has a puzzling opinion piece up on Fox News in which he insinuates that Judge Walker might have been biased in the Prop. 8 case because he is in a long-term committed gay relationship (whether it is true that Judge Walker is gay or is in a long-term relationship I have no idea, though I'll stipulate for the purposes of this brief post that it is) and might himself want to marry.  I say "insinuate" because Bradley never comes out and says that Judge Walker decided the case the way he did because of his relationship, though it seems to be the clear upshot of his piece. 

My puzzlement is twofold.  First, I don't quite understand what Bradley is saying, because he expressly says that he is not arguing that Judge Walker should have recused himself: 

I am not saying that Judge Walker should have refused [sic] himself in Perry v. Schwarzenegger.  I am not saying so because nowhere (as far as I know) has Judge Walker volunteered or been made to answer questions about how the outcome of that case would affect his interest (whatever it is) in marrying, and thus his interest in the manifold tangible and intangible benefits of doing so. 

That is a conversation worth having. 

And, sadly, it is quite too late to have it.

So his point is not that Judge Walker should have recused himself, but that it would have been worth having a conversation about his possible bias because Judge Walker is in a committed gay relationship.  On the other hand, Bradley asserts that "I do not doubt that Judge Walker made up his mind about Prop 8 before the trial began."  So he does seem to have a great deal of confidence that Judge Walker was in fact biased and, if so, he should have recused himself. 

My second source of puzzlement is why Bradley thinks this is a conversation we need to have had in the absence of any actual evidence of improper bias -- apart from Bradley's certainty and the authority of conservative commentator Ed Whelan, whom Bradley also cites.  Here's my question:  by Bradley's logic, would a white judge with children be subject to recusal  from hearing a challenge to an affirmative action program (or at least a "discussion" about his biases) because he might not want his children to be disadvantaged by such programs or is this the sort of insinuation of bias that is only valid against minorities?