As we warned might happen more than a year ago, the seeds planted by (since confirmed) rumors about Judge Walker’s sexual orientation have now borne fruit. Last week, proponents of Prop. 8 filed a motion to vacate Judge Walker’s judgment on the ground that his sexual orientation and long-term relationship with another man disqualify him because he had an interest in the outcome of the case. (This problem would, however, apparently have been cured had he publicly disavowed any intent to ever marry his partner.)
Given that the voter guide for Proposition 8, not to mention the arguments made in the case before Judge Walker, focused on the measure’s preservation and protection of the institution of marriage, it would seem, as I noted in my post last year, that any heterosexual judge who is married or in a long-term relationship would have a similar interest in the outcome of the case and would, therefore, likewise be disqualified from hearing the case if they did not publicly disavow an intent ever to marry. What about the Ninth Circuit judges hearing this motion to vacate? Should all of them now either recuse themselves or, alternatively, come forward to disclose their sexual orientation, relationship status, an intention (or lack of intention) to marry? Will the proponents of Prop. 8 be making a motion for Supreme Court justices to recuse themselves on these grounds when they get there?
It seems that the proponents’ arguments here are too clever by half. If the proponents of Prop. 8 try to argue that the protection and preservation of heterosexual marriage does not give heterosexual judges a sufficient interest in the outcome of the litigation to disqualify them, doesn’t that completely undermine their arguments in support of Prop. 8 itself? Rather than having found a “clever” way to use Judge Walker’s arguments against him and to get out from under an adverse decision, the proponents of Prop. 8 seem to have painted themselves into a corner. Either very few judges will be left to hear their case (would the Supreme Court even be able to muster a quorum?) or they will have sucked the wind from the sails of their arguments.