By Jennifer Coffman
Officials in our branches of government serve different roles. Partisan politicians seeking ofﬁce in the executive and legislative branches publicly discuss their views on various topics, including court rulings, to inform the voters.
Judges, in contrast, are expected to serve neutrally and to interpret court rulings in order to resolve disputes; they speak through their decisions, not the media. The iconic symbol of justice, a blindfolded woman holding a sword and balance scales, represents the unbiased judge, blind to race, gender, sexual orientation, handicap, age, religion, wealth or any other distinguishing characteristic. Blindness is not Lady Justice's only attribute; she is also silent.
Abandoning both blindness and silence, Fayette Circuit Judge Tim Philpot recently commented on the effect of two recent Supreme Court same-sex marriage cases. Judges are umpires whose ball-and-strike role lies within the context of actual disputes, not in newspapers. By opining on cases that aren't in his court, Philpot took several risks, not the least of which is that he could be wrong. He concluded that the rulings do not change Kentucky law on gay marriage, but other judges who consider and resolve the issue might disagree.
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The act of writing the column was not Philpot's only error. In discussing the two cases — one invalidating California's Proposition 8 and the other ﬁnding partly unconstitutional the federal Defense of Marriage Act, or DOMA — he demeaned at least one fundamental notion of justice. Because it rests on one side's lack of standing, he said, the ruling in the California case is "a rather boring and technical decision." Yet, our Constitution empowers judges to decide disputes between parties who have a real stake in the outcome. A party who lacks such a stake lacks standing. While the lay observer might consider such a principle "boring and technical," judges routinely apply the principle in constitutional interpretation.
Philpot also ridiculed the fundamental notion of judicial review by stating that when a federal district judge found Prop 8 unconstitutional, "One trial judge trumped every voter in California." Using the power of judicial review, established since 1803 in Marbury vs. Madison, judges, including Philpot, have the authority to analyze laws and to invalidate them if they are unconstitutional. His criticism of that practice is thus remarkable.
Indeed, the possibility that a case involving these issues could arise in Philpot's court underscores the primary error of his column: he has undermined his own judicial integrity. If squarely presented with the issue of the DOMA ruling's effect in Kentucky, he might have to disqualify himself from the case because he has stated his opinion on that topic. It is not unusual for judicial nominees or candidates to decline to comment on an issue because it could arise in their courts; they must disqualify themselves in case of actual bias or the appearance of impropriety.
Additionally, Philpot might have foreclosed his ability to sit on any case involving gay marriage because his comments raise a question of bias on the topic of sexual orientation.
Curiously and gratuitously, he mentioned the sexual orientation of the trial judge who invalidated Prop 8 but not of any other person named in his column. That reference is puzzling for its lack of relevance to Philpot's discussion and because neither appellate court included the trial judge's sexual preference as an analytical element.
A few words about the intent of this column are in order. Although I am an adjunct professor at the University of Kentucky College of Law, these opinions are mine and not those of the university or College of Law. This piece is not written to take a position on marriage equality or to comment on the effect of the Supreme Court's DOMA opinion in Kentucky.
The legality of gay marriage is the proper province of the state legislatures and courts. The DOMA ruling's effect in Kentucky rests with the courts which consider the matter; indeed, the ﬁrst test case has been ﬁled in U.S. District Court in Louisville. In the absence of a pertinent case arising in his own court, in which he could act as a judge empowered to resolve the issues, Philpot should have left the topic to those entities as well.
At issue: July 29 commentary by Judge Tim Philpot, "Rulings do not change Ky. law on gay marriage"