Religion & Law

One of the reasons I am enjoying the judicial recusal debates is that, in their technical way, they unexpectedly touch on various deep questions.  One of those is the nature of marriage today.  Readers may be interested to look over Judge Reinhardt's explanation, issued today, for his earlier refusal to grant the motion to recuse in the Perry litigation.  For what it's worth, I think Judge Reinhardt makes a plausible case not to recuse himself in this matter.  In an earlier post, I wrote that it is not reasonable automatically to treat spouses as a political or ideological unit, and Judge Reinhardt spends a good deal of the memorandum making this point.

But it seems to me that he goes further, with this:

Proponents' contention that I should recuse myself due to my wife's opinions is based upon an outmoded conception of the relationship between spouses . . . . In 2011, my wife and I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them . . . . Because my wife is an independent woman, I cannot accept Proponents' position that my impartiality might reasonably be questioned under [section] 455(a) because of her opinions or the organization that she heads.

Judge Reinhardt adds a footnote to the co-authored book by James Carville and Mary Matalin, All's Fair: Love, War, and Running for President.

I don't think it was necessary for Judge Reinhardt to go this far, and I think it weakens the opinion that he does so.  As I said, it is wrong automatically to impute ideological identity as between spouses for recusal purposes.  But it rings false, at least to me, to describe the relationship of a husband and wife as one in which "fundamental interests" are "shared."  I share fundamental interests with lots of people -- my friends, people I go to church with, the guy across the street who got a "Slow, Children" sign put up close to our house, maybe even a law professor or two (given my views, probably not many more than that).  I share fundamental interests with people I don't know: lovers of Italian poetry, or of French cuisine and Bordeaux grands crus (not fundamental enough?  I cannot agree).  It seems to me that most people think that spouses are united by more than common interests, even fundamental ones.  Here's only a partial list off the top of my head: bonds of love, of loyalty, of sentiment, of respect and admiration, of duty, and of fidelity. 

Now, it's certainly true that not all married couples share these bonds.  But (I suspect in order to make his opinion appear more powerful) Judge Reinhardt seems to want to make a stronger point about what modern marriage is all about -- about each of the spouses' "independence" aside from whatever interests they share.  The trouble is that since the recusal standards rely very much on public appearances, they also trade on ideas of what ordinary people think -- and in this case, what an ordinary person might think about the nature of the relationship of a married couple.  Is it really "outmoded" or the vestige of some horribly atavic, chauvinistic conception of marriage to think that a spouse, for reasons of love, respect, familial congeniality, and so on, wouldn't at least consider the feelings of the other spouse in deciding on any given course of action?  

But maybe it is I that misunderstands the sorts of bonds that marriage today -- at least as an ideal -- generally suggests.  It might be true that the bonds I list above -- or any others that you can think of which somehow exceed "share[d]" "interests" -- are generally perceived to be "outmoded."  It certainly isn't the first time I would have been called outmoded.