It’s not surprising that it looks as if the 9th Circuit will reject the farcical argument that Judge Vaughn Walker (who ruled that the Proposition 8 violates the 14th Amendment) should recuse himself because he’s gay. But this line of argument concedes way too much:
But the 9th Circuit judges stressed there was no proof Walker had any intent to marry, with one, Judge Michael Daly Hawkins, noting that he did not marry in the window of time when same-sex marriage was legal in the state — before Proposition 8 was approved by the voters.
This may be true, but it’s beside the point. So what if Walker did intend to get married? Are homeowners disqualified from hearing 4th Amendment cases? Are only judges who pledge never to speak or write in public allowed to rule on 1st Amendment cases? Do judges have to pledge never to buy equities before they hear a securities litigation case? (And, of course, the assumption that only gays and lesbians are affected by same-sex marriage bans is to concede in advance that they’re irrational.) The argument that Walker has to recuse himself is profoundly foolish and profoundly offensive, and the fact that it’s being made in open court is in itself a good argument that classifications based on sexual orientation should be subject to strict scrutiny.