Last August, Judge Vaughn Walker ruled in California's Prop 8 case, also known as Perry v. Schwarzenegger, that marriage as a socio-political and as a legal institution should be just attainable for same-sex couples as it is for heterosexual couples, and that Prop 8 violated the rights of California's gay and lesbian citizens. You can read Judge Walker's reasoned and thoughtful comments about his decision.

But the attorneys and supporters of Prop 8, under the aegis of "Protect Marriage"(also known as Yes On 8) filed a motion to have Federal Judge Walker's decision voided, asserting that since Judge Walker (who has retired from the bench in the interim) was himself in a long-term same-sex relationship, which, they assert, means he is not capable of functioning as an impartial judge. You can read Protect Marriage's motion. They feel Judge Walker should have recused himself.

The Prop 8 argument, such as it is, hinges on the assertion that because Judge Walker was in a long-term same-sex relationship, marriage has potential future value for him, and thus bias. The problem with their assertion is that a heterosexual judge is just as capable of being biased. The irony of course is that the fact that marriage does have value is why people who support same-sex marriage think it's important to offer marriage to both same-sex and heterosexual couples.

The motion was tried today in San Francisco by Judge James Ware, though no decision has been made. Much of the testimony consisted of questions about race, gender, and religion as legitimate bases for recusal; attorneys for both sides (Theodore Boutrous Jr.,the attorney for the American Foundation for Equal Rights opposed Charles Cooper, attorney for Protect Marriage). Both sides asserted that race, gender, and religion were insufficient reasons for judicial recusal. Judge Ware asked a number of questions, including asking if a judge who were a sexual assault victim would be required to disclose that in a rape case.

Cooper asserted that because Judge Walker has been in a same-sex relationship for ten years, he is biased. Judge Ware "What fact do you cite that he was in a relationship for the purpose of marriage?" asked Ware. Cooper couldn't respond, other than to assert that same-sex couples in a long-term relationship could be assumed to want marriage. Ware noted that that was, in fact, an assumption; that many couples do not want to marry.

Judge Ware has said that he will deliver a decision in the next 24 hours.