06/14/2011 11:50 am ET Updated Aug 14, 2011

Gay Judge Bashing

In a hearing Monday on whether the judge who struck down California's ban on same-sex marriage should have recused himself from the case, Prop. 8 backers insisted they were just misunderstood. They weren't asking for Vaughn Walker to step aside because he is gay. No, they are making a much more subtle and sophisticated argument: it's because he wants to have his own same-sex marriage and, as a result, he was likely biased in favor of one side in the dispute.

In other words, Prop. 8 backers want Walker to be recused because he is, well, gay.

How can the backers of Prop. 8 argue with a straight face that they aren't basing their argument on Walker's sexual orientation? They claim that Walker was biased in the same way a judge who owns Exxon stock can't be trusted to be impartial in cases involving Exxon. Walker's alleged lack of impartiality stems from the fact that he's in a long-term same-sex relationship and thus has a personal interest in securing gays like himself the right to marry. Marriage, of course, comes with a host of financial benefits, which Walker will be able to enjoy. He was basically self-dealing.

The "mere fact that Judge Walker may be homosexual would not necessarily have required recusal," writes John Eastman, a law professor who supports Walker's recusal. Ed Whelan of the National Review concurs.

In Monday's hearing, James Ware, the presiding judge, pointed out one of the problems with this argument. There is absolutely no evidence that Vaughn Walker intends to get married. "You can be in a long-term relationship without it being for the purposes of marriage," Judge Ware correctly observed. He asked the lawyer for the Prop. 8 defenders to "tell me what fact you would have the court rely on to suggest that Judge Walker wanted to change, not maintain, his relationship." The lawyer couldn't offer one.

Scratch that -- the lawyer for Prop. 8 did have one relevant fact: Judge Walker was a gay man in a relationship. What other evidence could be necessary?

The argument of Prop. 8's backers actually marks a great step forward for the gay community. It used to be gay men were inevitably portrayed as promiscuous, over-sexed, and incapable of commitment. Now, apparently, the problem with gay men is they are too stable. All they want is to get married.

The notion that gay men like Judge Walker enter into long-term relationships for the purpose of getting married will come as a surprise to many in the LGBT community. They were under the impression that they weren't allowed to get married. And yet they are basing their relationships on an unavailable legal status?

The truth is that the effort to recuse Judge Walker's has nothing to do with the fact that he's in a relationship. It's that he's in a same-sex relationship. He wouldn't stand to benefit from his ruling if he were in a relationship with a woman. Only because Judge Walker is in a gay relationship is his impartiality is being questioned. In other words, his sexual orientation makes all the difference.

Of course, if Judge Walker was in a relationship with a woman, his impartiality could still be in doubt. If those who argue that allowing gays to marry harms the very institution of marriage are right, then heterosexual judges would have to recuse themselves too. After all, they might want to get married one day. Perhaps, then, no judge, straight or gay, would be able to rule on the challenge to California's ban on same-sex marriage.

Maybe that's the real nuance behind the recusal effort. Maybe Prop. 8 backers secretly hope that all judges are disqualified from ruling on the constitutionality of the ban. Given the speciousness of many of their arguments against same-sex marriage -- and against Judge Walker -- that might be the only way for them to save this discriminatory law.