National Review Online blogger Ed Whelan is pretending that the move to vacate Judge Vaughn Walker's ruling striking down California's ban on same-sex marriage is not based on Walker's sexual orientation. Whelan's argument is not only illogical, it fails to account for the right-wing slogan "if the judge ain't straight, you must vacate," which was coined by the head of Liberty Counsel, a prominent same-sex marriage opponent.
Whelan repeatedly argues that, in the words of one of his posts, "Prop 8 proponents do not base their motion on the fact that Walker 'is gay,' but on the fact that he is in a long-term same-sex relationship." It is extremely important for Whelan to make this distinction because legal ethicists nearly universally agree that Walker's sexual orientation is not grounds for recusal as have numerous newspaper editorials and commentators. And Whelan himself has said that "a judge's personal characteristics don't generally provide a basis for recusal."
However, Whelan's argument that the issue isn't Walker's sexual orientation falls flat.
Whelan has acknowledged that "there is 'no evidence' of Walker's specific intentions" about whether to marry or not. His recusal argument is based solely on surmises based on the length of Walker's relationship. However, Whelan never explains how long a same-sex relationship must be before it requires that the judge step aside. Nor does he explain why--based on his logic--a gay judge who definitely wants to marry but who hasn't yet found the right person should not also be disqualified.
Indeed, the threshold question a judge must answer in Whelan's view is not whether a judge is in a long-term relationship but whether the judge is gay. Under Whelan's theory, a judge presiding over a same-sex marriage case would seemingly have to disclose his sexual orientation and then subject himself or herself to a series of probing questions about whether the judge is in a relationship, how long that relationship has been going on, and whether the judge is really the committing type.
Whelan's hypothetical example of why this is about the relationship not the sexual orientation of the judge shows just how absurd the argument is. Here's the best example Whelan comes up to explain why his arguments about this case might apply to a straight judge:
Imagine a peculiar hypothetical (involving adoptive rights, say) in which a heterosexual male judge desires to enter into a nonsexual same-sex marriage with another heterosexual male. That judge would surely be recused from deciding a case that presented the question whether a right to same-sex marriage existed in his state. It is absurd to maintain that a gay judge who desires to enter into a same-sex marriage would not likewise be disqualified.
So, as vehemently as Whelan and others try to argue otherwise, there argument that Walker should be disqualified is really based on Walker's sexual orientation.
Another opponent of Walker's gay marriage ruling, J. Matt Barber, director of cultural affairs with Liberty Counsel and associate dean of Liberty University Law School is more open about the fact that Walker's sexual orientation is key to the case against him.
Barber wrote a column headlined "If the Judge Ain't Straight, You Must Vacate." In it Barber wrote:
Back in February of 2010 it became rumored that retired Federal Judge Vaughn Walker -- who presided over the case at the District level -- was a practitioner of the homosexual lifestyle. It was further reported that he had a longtime male lover. Judge Walker refused to confirm or deny the rumors. At the time I was one of the few people to publicly call for his recusal. It's inexplicable that attorneys defending Prop 8 didn't make such a motion.
With Judge Walker's recent admission that he does in fact practice homosexuality, the case for recusal has been proven. His ruling on the Prop 8 case should be immediately vacated as he possessed both an incontrovertible and disqualifying conflict of interest.
Barber eventually argues that "Stemming from his own bizarre and contrived legal findings in the case, Judge Walker's ruling made it possible for both he and his male sexual partner to 'marry.' " But it is clear that Barber's issue is, in Barber's own words, that Walker "does in fact practice homosexuality."
That's at least an honest description of the motives behind the move to vacate Walker's decision.