Michael J. McShane, United States District Judge, and a beautiful piece of prose

Jeffrey Kiok, a J.D. Candidate at Boston University School of Law, sent me a note. He drew my attention to the concluding part of Judge McShane’s opinion in the Oregon same-sex marriage case.  Jeffrey has my thanks.

The judge concludes his opinion this way:

My decision will not be the final word on this subject, but on this issue of marriage I am struck more by our similarities than our differences. I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and
service to the greater community.
Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other … and rise.

(Italics supplied by Kopf.)

What a stunning and beautiful piece of prose that obviously came from Judge McShane’s soul. I wish I could write like the judge.* Don’t we all.


*I express no opinion on the merits. A similar case could easily come before me.  If it did, some folks might be surprised by my views. Others would say I told you so. In any event, the expression of those views is premature.  I will wait until I have an actual case and controversy on this subject, if I ever do, to tell you what I really think.

15 responses

  1. Given the almost identical holdings by USDJs in Virginia, Kentucky, Ohio, Michigan, Texas, Oklahoma, Utah, Pennsylvania, California and Idaho, it is extremely possible for a judge to give such a ruling without being an openly gay man.

    Now, his personal experience may have had some impact on the way he phrased the ruling. Judge McShane made liberal use of the first person and was obviously heartfelt in what he was saying. That does not mean it wasn’t a legally sound ruling by an impartial magistrate though. It would be extraordinarily inappropriate to say that a homosexual judge cannot fairly rule on a question that centers around homosexuality.

  2. Peter H:
    I respectfully disagree: all of us, straight or gay, can exhibit biases in favor of our respective “tribes.” I am not saying that is true of Judge McShane concerning the decision he recently rendered. But I am saying that a blanket statement (“It would be extraordinarily inappropriate to say that a homosexual judge cannot fairly rule on a question that centers around homosexuality.”) is untrue.

  3. Try substituting any group that would normally be party to an equal protection case into my statement and I think the point would be clear:

    “It would be extraordinarily inappropriate to say that a disabled judge cannot fairly rule on a question that centers around disability.”

    “It would be extraordinarily inappropriate to say that an immigrant judge cannot fairly rule on a question that centers around national origin.”

    “It would be extraordinarily inappropriate to say that an atheist or devoutly religious judge cannot fairly rule on a question that centers around religiosity.”

    I stand by all of the above statements. Meritorious equal protection cases usually involve large classes of people, some of whom will be judges. Those judges are under no ethical obligation to recuse themselves because of an innate characteristic about them or their exercise of their fundamental rights.

    The statement does not say that every homosexual judge can rule on the case, if, for example, the judge had in the past donated to the organization representing the plaintiff, that would be a strong grounds for recusal. But the fact of being homosexual itself does not mean the judge is unable to be a neutral magistrate and dispose of the case fairly.

    If you believe that we are all biased for the groups we belong to and against the ones we don’t, then no judge could ever try an equal protection case; everyone’s biased.

  4. Peter H.,

    You say “Judge McShane made liberal use of the first person . . . .” Of course you are right.

    But here is a secret, if you read one of “my” opinions and it is not written in the first person then a clerk wrote the words, not me. After years and years of thinking about this (and Judge McShane was only appointed in 2013, I think) yours truly has come to one conclusion. One of the few benefits of being a district judge is that you may write in the first person if you like, and I like. It is truthier.

    All the best.


  5. Judge,

    Thanks for replying, and for the tip when reading an opinion of yours. I do remember when browsing your doorstop on the partial birth abortion ban that you used “I” quite a bit, including the very entertaining note about its length.

  6. Robert and Peter H.,

    I can’t make this thing reply to both of you, so forgive the place WordPress places this reply. It is to both of you.

    I think you both are right and both are wrong. A judge’s membership in a tribe can be, and often is, a very good reason not to sit. It is also true that a judge’s membership in a tribe is frequently not any problem whatever. Unlike financial conflicts where a penny of ownership is all that is needed to require a judge to get out because of the Code of Conduct, it is a matter of degree (good faith on the part of the judge) when it comes to tribes.

    Take a real, albeit slightly silly, example that applies to me: I smoke a pipe and my wife smokes cigarettes. I smoke in my office and say to hell with GSA. I belong to a tribe of smokers. Yet, I am satisfied that I could sit as a fair and impartial trial judge in case against a tobacco manufacturer because I acknowledge that smoking can kill you and that, under certain circumstances, companies that sell products that can kill consumers should be held accountable in a law court.

    As a general matter, such as the situation you both are debating, the ethics of judging is more art and good faith than it is rule. That is the uncomfortable truth in cases like this one.

    Thank you for your engagement. All the best.


  7. Peter H:
    You yourself said that Judge McShane “…made liberal use of the first person…” in his decision, thereby suggesting some connection to his sexual preference. Nonetheless, I am not saying that Judge McShane exhibited bias. I am merely saying that your blanket assertion is untrue: in fact, there may very well be gay judges who are unable, because of their sexual preference, to adjudicate case before them involving gay issues. You say “…judges are under no ethical obligation to recuse themselves because of an innate characteristic about them or their exercise of their fundamental rights.” Yet, as you likely well know, judges are held to the highest ethical standard possible, i.e., avoiding even the appearance of impropriety. We must not ask judges for objectivity as that strikes me as an impossible standard. We can, however, expect judges to be intellectually honest such that disqualification is appropriate when something outside the law and the facts of a particular case (such as bias for or against one’s “tribe”) would impinge on that judge’s good faith decision making.

  8. I agree with pretty much everything said here.* I think I was uncharitable in my reply to Robert (and perhaps unclear to begin with) about what I was saying. I do not mean that a judge should not factor in any bias from being a member of a particular group in deciding whether to recuse. I rather meant that to say that group membership always necessitates recusal or impeaches the validitiy of a ruling is wrong.

    *Except the bit about smoking in your office.

  9. “It would be extraordinarily inappropriate to say that a male judge cannot fairly rule on a question that centers around a woman’s claim of sex discrimination”

    “It would be extraordinarily inappropriate to say that a white judge cannot fairly rule on a question that centers around a clam that a white discriminated against a person of color”

  10. Peter H.,

    I only smoke my pipe in my enclosed cubicle in my personal office and that office, excepting the cubicle, is a fairly large space with decent circulation. I try not to do so when my staff comes in to see me in the cubicle. Not much of an excuse, but it gives me a bit of comfort.

    All the best.


  11. Given the argument that same-sex marriage harms opposite-sex marriage, would a judge in an opposite-sex marriage be unable to fairly rule on a question of same-sex marriage?

  12. L,

    Because I am not sure I understand, I will rephrase your question. Let’s take a hypothetical: A man and a woman who are married sue claiming that the state has violated their civil rights because the state has decided to issue marriage licenses to same sex couples and by doing so has retroactively redefined the word “marriage” thus harming the plaintiffs. The claim is that the married couple have a liberty interest in the word “marriage” and by retroactively changing the definition of “marriage,” the state has harmed the couple by redefining the word “marriage” after they have relied upon that definition by their reliance upon the plain meaning of the word “marriage” thus foregoing a religious ceremony that would have been consistent with their views about the meaning of “marriage.” (Know that there a lot legal problems with this scenario, but forgot those for a moment.) You wonder whether a judge, male or female, who is married to a person of the opposite gender, could fairly sit in judgment of the case.

    My answer, for what it is worth, is that it depends. See my earlier comment addressed to Robert and Peter H.

    All the best.


  13. Sorry Judge, but I don’t think this type of thing belongs in a judicial opinion. It’s ostentatious and calls attention to itself instead of the underlying legal analysis. Cardozo wouldn’t have pulled something like this.

  14. AYY,

    I believe your opinion is shared by many others including lawyers and federal judges. To an extent, I agree that writing personally in an opinion can be misconstrued. It is delicate balance one must strike. For me, I think the balance struck here was fine. But, I appreciate your point of view and have no basis to say you are wrong.

    Regarding Cardozo’s writing style, Judge Posner has written something about that as a part of a broader assessment. See Richard A. Posner, Cardozo: A study In Reputation, University Chicago Press, (1990)

    In a review of Posner’s book, Jerry Goldman, of the political science department of Northwestern, observed that some critics have asserted that Cardozo’s style was “obese and archaic.”

    He adds: “Here Posner displays his ample gift for exposition and criticism. He penetrates Cardozo’ style, offering explanations for Cardozo’ distinctive prose. A common example is Cardozo’s inversion of subjects and predicates. (‘Negligent the act is, and wrongful in the sense that is is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of vigilence perceives the risk of danger. [This from Cardozo’s much celebrated and criticized opinion in Palsgraf v. Long Island R. Co. quoted in Posner p.44.] Cardozo also used metaphor and aphorism; and critics have labeled his style ‘ornate.’ Posner takes issue with these critics and defends Cardozo rightly for his brevity and vividness. If Cardozo’s style merits criticism, it is for sometimes writing with ‘exotic grace.”

    In short, even great jurists (and writers) have their critics and defenders. Thanks for your engagement.

    All the best.


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