Campaigners for California’s ban on same-sex marriage in 2008 told traditional families they had much at stake: the future of marriage itself and the need to “protect our children,” as one ad put it, from the impact of legalized gay and lesbian unions.
Now, as the sponsors of Proposition 8 try to convince the courts that the judge who overturned the measure had a built-in bias as a gay man with a longtime partner, their opponents are invoking that same campaign message: If Prop. 8 was meant to preserve opposite-sex marriages, they argue, then any judge, gay or straight, would have the similar conflict of interest.
In their latest court filing, the measure’s supporters reply that they never promoted Prop. 8 as a benefit for married couples – just for society as a whole.
“Our argument is that adoption of same-sex marriage will likely harm the institution of marriage over time, not that any individual’s existing marriage will be affected,” said Charles Cooper, lawyer for the Prop. 8 campaign committee, a conservative religious coalition called Protect Marriage.
“The notion that all married heterosexual judges have a direct and substantial personal interest in the outcome of this case is, of course, patently absurd.”
Theodore Boutrous, a lawyer for two same-sex couples and a gay-rights group that challenged Prop. 8, said the measure’s sponsors were contradicting their campaign message that heterosexuals needed protection from same-sex marriage.
“It’s a stunning admission that all the arguments they were making before are completely baseless,” he said.
Ethics expert, Stephen Gillers of New York University, said an unreported long-term, same-sex relationship should not be grounds for disqualifying a judge. Since Walker could have married his partner in California before Prop. 8 passed, and could marry him today in a number of states, Gillers said, “his decision has no consequence to him.”