It’s only Tuesday, but this week has already been a terrible one for anti-gay supporters of marriage discrimination. Yesterday, the high-dollar law firm Speaker John Boehner hired — at taxpayer expense — to defend the unconstitutional Defense of Marriage Act dropped the case after several of the firm’s major clients balked at its lawyers’ decision to defend discrimination. Meanwhile, Don’t Ask/Don’t Tell is about to become a nasty memory, and California’s anti-gay Proposition 8 hangs by a thread after now-retired federal Judge Vaughn Walker held it to be unconstitutional.
Yet, as the wheels rapidly spin off their anti-gay bus, marriage equality’s opponents are turning to more and more desperate tactics to try to prevent gay Americans from receiving their constitutional right to “equal protection of the laws.” Their latest ploy is a motion seeking to retroactively force Judge Walker off the Prop 8 case because Walker may secretly be harboring a hidden desire to someday marry someone at some unspecified point in the future:
At no point prior to the entry of judgment did Chief Judge Walker disclose that he is in a now 10-year long, committed same-sex relationship. And he has yet to disclose whether he has any interest in marrying his partner should the injunction he issued be upheld on appeal. . . . [B]ecause Chief Judge Walker has not disclosed whether he and his partner have any interest in marrying, let alone unequivocally disavowed such an interest, it must be presumed that he has a disqualifying interest under Subsection 455(b)(4). For only such an unequivocal disavowal would negate the strong inference, arising from his acknowledged longterm, committed relationship and his findings in this case concerning the benefits of marriage for same-sex couples, that he has a personal interest in exercising the federal constitutional right he recognized to marry a same-sex partner should the injunction he issued be affirmed.
In essence, Prop 8′s proponents speculate that, because Walker could possibly want to marry his partner someday, we must presume that he intended to marry him while he was presiding over this case. After all, Walker did not go out of his way to profess that he has no interest in marrying the person that he is with.
But it would be completely absurd to require a judge to recuse himself from deciding a case because of speculation about what he may someday want to do. Justices Ginsburg, Sotomayor and Kagan have never “unequivocally disavowed” a future desire to work at Wal-Mart, but that certainly does not forbid them from hearing a major gender discrimination case against that corporation. African-American Justice Clarence Thomas has never “unequivocally disavowed” any desire to stay in a hotel in the once-segregated south — indeed, it is likely that he has previously done so — but that does not prevent him from hearing a case challenging the ban on race discrimination by hotels. Speculative fears that a judge may, at some undetermined date in the future, take advantage of a law that is now before their court cannot be the basis of a recusal.
Ironically, if a court were to accept the anti-gay group’s arguments, it would also follow that no judge who is presently in a committed opposite-sex relationship would be allowed to hear this case either. The name of the organization defending Prop 8 is “Protect Marriage,” a name that derives from their bizarre belief that same-sex marriages are destructive to opposite-sex marriages. But if this were true, than straight judges would have a personal stake in ensuring that their own marriages are not undermined by a decision striking down Prop 8 — and thus would also be required to recuse.
It is difficult to imagine any court wandering down a path that would prevent female judges from hearing gender claims, black judges from hearing race claims, and married judges from hearing cases involving the scope of the marriage right. Prop 8′s supporters are grasping at straws.