Where you come down on this will probably depend on your beliefs about gay marriage. But I’m not so sure the issues are identical.
It can be argued that the defendants had a right to challenge Walker for bias and did not. I’m not sure this argument is persuasive. For one thing, trying to have your judge removed from your case is like trying to assassinate the dictator: feel free to try . . . but if you fail, you’re in deep trouble. Anyway, if there was a problem with the perception of bias, it was there whether the parties raised it or not.
One could argue that a gay judge deciding this case is no different than a heterosexual judge deciding the case. But I think that argument misses the mark. With this decision (at least once the stay is lifted), Judge Vaughn Walker now has the right to marry another man, if he wishes. This is a right he did not have in California before yesterday. The rights of a heterosexual judge would not have changed.
Still, if you see laws against gay marriage as discriminatory in the same sense that Jim Crow laws were, it’s tough to accept the premise that a gay judge could not ethically decide this case. (Yes, laws against gay marriage are not the same as Jim Crow laws. But that simplistic observation does not, without more, undercut the force of the analogy.) Would a black judge be required to recuse himself from hearing a challenge to Jim Crow laws? Somehow, the intuitive answer to that question is no, of course not. Why is this different?