This is really ugly:

Rumors swirled that the federal judge who had struck down California’s same-sex marriage ban last summer was gay, but the lawyers charged with defending the measure remained silent on the subject. Their preferred strategy for getting the ruling overturned on appeal was to focus on the law, not a judge’s personal life, they said.

Eight months later, Proposition 8′s proponents and their attorneys have taken a new position. They filed a motion Monday seeking to vacate Chief U.S. District Judge Vaughn Walker’s historic ruling, a move they said was prompted by the now-retired jurist’s recent disclosure that he is in a long-term relationship with another man.

Lawyers for the ban’s backers argue that the judge’s relationship status, not his sexual orientation, gave him too much in common with the couples who successfully sued to overturn the ban in his court. The judge should have recused himself or at least revealed the relationship to avoid a real or perceived conflict of interest, the lawyers say.

“If at any time while this case was pending before him, Chief Judge Walker and his partner determined that they desired, or might desire, to marry, Chief Judge Walker plainly had an interest that could be substantially affected by the outcome of the proceeding,” wrote attorneys for the coalition of religious and conservative groups that put Proposition 8 on the November 2008 ballot.

Now I was one of a handful of people to actually sit in the courtroom for that trial, and I think if you asked anyone who was there the opinion would be unanimous: Vaughn Walker was a completely impartial jurist throughout that trial, making his rulings based on the evidence at hand. The truth is that the Defendant-Intervenors came with a shitty case. Their expert witnesses mostly dropped out, and the ones who remained lost all their credibility upon cross-examination. David Boies and Ted Olson out-argued them in court, not least because they had the plain facts on their side. And Walker ruled accordingly.

The fact that the Defendant-Intervenors never brought this up, not only at the trial stage, but for months after the ruling, gives the game away here.

What’s more, the slippery slope for this kind of argument is clear. If Walker would have to recuse because he is gay and in a relationship, would a judge in a heterosexual marriage also have to recuse? Would he not have to recuse if he merely cruised from club to club every night and didn’t have a long-term partner? Could only a confirmed bachelor or bachelorette who vowed never to marry, and thus not have their marriage threatened by a same-sex couple, have the distance necessary to judge? Can a woman not fairly judge a gender discrimination case? Can any judge over the age of 65 not fairly rule in an age discrimination case?

This ugly tactic plays to the basest instincts of the human condition, positing LGBT judges as somehow not as committed to fairness in a court of law as their heterosexual counterparts. The American Foundation for Equal Rights had the exact right response. “This motion is another in a string of desperate and absurd motions by the proponents of Proposition 8, who refuse to accept that the freedom to marry is a constitutional right.”