The National Organization for Marriage wants Judge Vaughn Walker's decision on Prop 8 last summer thrown up, and they filed a motion to that effect yesterday. Supporters of the anti-gay marriage law think the judge should have recused himself because he is gay and in a long-term relationship. But proponents of gay marriage, who have challenged the constitutionality of the law, say the judge's sexual orientation is irrelevant to his decision in the case, and besides, it was well known even before the judge struck down law on August 4 and nobody complained.
Here's the background: In 2008, California voters passed the California Marriage Protection Act (state proposition 8), which changed the state constitution to define marriage as "only marriage between a man and a woman." Just days after the vote, several groups filed suits in federal district court, calling for the law to be overturned on the grounds that it infringed on civil rights.
Walker, the chief judge of the San Francisco-based ninth federal court district, ruled on August 4, 2010, that the law "discriminated on the basis of sexual orientation and gender," according to longtime San Francisco Chronicle federal court reporter Bob Egelko. Walker retired this year. The Chronicle reported on Walker's sexuality during the trial, and the Los Angeles Times notes that he "was widely known within San Francisco's legal community to be gay. He brought his partner to bar events and introduced him to others as his partner." So why didn't NOM and its lawyers make a big deal out of his sexuality until yesterday?
It seems the thing that really got under NOM's skin was that Walker started showing a three-minute video of the Prop. 8 trial in lectures he has been giving post-retirement. On April 13, they filed a motion to stop him showing the video, and they pressed the attack Monday with the request to void the trial. "Judge Walker's ten-year-long same-sex relationship creates the unavoidable impression that he was not the impartial judge the law requires," Andy Pugno, a lawyer for ProtectMarriage, told the L.A. Times. "He was obligated to either recuse himself or provide full disclosure of this relationship at the outset of the case."
But opponents of the law have laughed off the challenge: "What's next? Are they going to say all female judges should recuse themselves from gender discrimination cases," San Francisco City Attorney Dennis Herrera asked the Chronicle. San Francisco is a plaintiff in the case.