There's a very big story unfolding in California right now whose ultimate outcome could determine whether or not gays and lesbians will have the right to get married in the United States.

The story concerns Proposition 8, the statewide referendum banning same-sex marriage. Having failed to prove their case in court, Prop 8 supporters are now attacking the sexual orientation of the judge who overturned the referendum.

Supporters of Prop 8 were dealt a blow last year when Judge Vaughn Walker ruled that there is no empirical basis for the notion that same-sex marriages harm heterosexual marriages and therefore no compelling interest in preventing gays and lesbians from getting married.

[On April 25], same-sex marriage opponents filed a motion to have Walker's ruling vacated, on the grounds that his being gay and in a long-term relationship amounts to a conflict of interest that should have forced him to recuse himself:

Given that Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced), it is clear that his "impartiality might reasonably [have been] questioned" from the outset. He therefore had, at a minimum, a waivable conflict and was obligated either to recuse himself or to provide "full disclosure on the record of the basis for disqualification," so that the parties could consider and decide, before the case proceeded further, whether to request his recusal. His failure to do either was a clear violation of Section 455(a), whose "goal … is to avoid even the appearance of partiality."

This argument is too clever by half, and relies on the same faulty argument put forth originally in defense of Prop 8: the qualitative judgment that same-sex relationships are inferior. Opponents of same-sex marriage are arguing, in effect, that because Walker was in a long-term same-sex relationship, he stood to benefit personally from Prop 8 being overturned. They argue, naturally, that the issue is not Walker's sexuality per se but his relationship status. But by that logic, the only way a gay or lesbian judge could rule impartially on matters involving gay rights is if they're celibate.

Read the rest of this op-ed at the Washington Post.

For a broader view of the argument, see an article in our archives by our legal expert Sherrilyn Ifill