[See update below]
It turns out that the judge who declared Proposition (h)8 unconstitutional has a long-time same-sex partner. The h(8)ers – who knew this all along*, since Judge Walker made no secret of it, but didn’t raise any protest during the hearings – are outraged. This was an obvious conflict of interest! Judge Walker should have recused himself!
But according to their theory, same-sex marriage would damage the institution of (opposite-sex) marriage. Therefore, any married jurist would also have had a conflict of interest. So would any unmarried straight jurist, who might, after all, want to get married in the future, just as Judge Walker might. Even a completely celibate judge would have had a conflict of interest due in protecting the marriages of his or her friends and relatives.
So it would appear that Protect Marriage wants the case heard by Martians, or perhaps by members of some species that reproduces asexually. Fine with me. But would it be possible to find a Martian judge, or a paramecium, capable of grasping the existence of people whose joy in life consists of denying marital rights to others?
*Update Turns out that the Prop. 8 proponents don’t deny having learned of reports that Judge Walker was gay, although he’s only now commenting about that on the record. What they claim as new information is that he’s in a committed relationship. That, they say, gives him a conflict of interest that another gay judge might not have had, since he and his partner might want to get married.
In other words, they’re not really asking for a Martian or a paramecium. According to their logic – though they don’t quite come out and say it – they would accept any straight judge, or a gay judge who was either celibate or promiscuous. It’s only a gay judge who wishes to conform to the socially-approved pattern of pairwise mating who can’t properly hear this case.
You can see their point, of course. If you’re committed to the notion that gay people are inherently promiscuous, the sort of sneaky gay person who refuses to conform to your prejudices is especially dangerous.
Still no explanation why the threat to a straight married judge’s own home life posed by the acceptance of same-sex marriage – which is after all, the entire purported basis for the ban – wouldn’t give that judge an equally strong conflict of interest.