Due to the personal involvement of Judge Reinhardt’s wife in the Prop. 8 case and his own inability to be impartial based on his prior rulings against protection of traditional marriage, the Pacific Justice Institute is taking the extraordinary step of calling for his recusal from the case. PJI filed an amicus brief with the Ninth Circuit, detailing support for traditional marriage in ancient civilizations that otherwise tolerated homosexual behavior.
“We do not undertake this call for recusal lightly,” said PJI president Brad Dacus. “Ordinarily, the judicial system is entitled to a high degree of respect, even when we disagree with its decisions. Unfortunately, Judge Reinhardt’s extreme prior decisions and his wife’s active opposition to Prop. 8 make it clear to any intellectually honest observer that he cannot hear the case impartially.”
Judge Reinhardt, placed on the Ninth Circuit by President Jimmy Carter thirty years ago, has been an unusually active crusader for homosexual rights on the bench. Just last year, Reinhardt ruled that the federal Defense of Marriage Act (DOMA) was unconstitutional as applied to federal employee benefits. In that decision, Reinhardt quoted approvingly from the California Supreme Court’s 2008 decision striking down the predecessor of Prop. 8 and barely disguised his disagreement with the Court’s later ruling upholding Prop. 8. In other decisions, Judge Reinhardt has held that students must give up free speech rights when their expression would offend gays; that employers can prohibit employee speech that disapproves of homosexual behavior; and that parents have no constitutional rights to protect their elementary-age children from school-initiated discussions of sexuality and, specifically, gay marriage.
Perhaps even more troubling than Judge Reinhardt’s prior decisions, his wife—the longtime head of the ACLU of Southern California—is personally involved in the case he is set to hear next Monday. Not only did she contribute financially to the “No on 8” campaign and publicly extolled Judge Walker’s decision that is scheduled to be heard by her husband, but she also strategized with attorneys for the plaintiffs.
Besides his gay rights decision, Judge Reinhardt has developed a reputation for striking down legislation supported by conservatives and limiting religious expression. For example, Judge Reinhardt voted to strike down the federal ban on partial birth abortion and believes it is unconstitutional to recite the Pledge of Allegiance in schools. Perhaps because of his tendency to take radical positions on social issues, Judge Reinhardt has reportedly been reversed by the U.S. Supreme Court more than any other judge in history.
The other two Ninth Circuit judges slated to hear the Prop. 8 appeal are Michael Daly Hawkins, nominated by President Clinton, and N. Randy Smith, nominated by President George W. Bush.