Yes on 8 attorneys say no one would seek to vacate openly gay Judge Vaughn Walker’s decision concerning the law barring openly gay people from the military. But when he struck down California’s law barring same-sex couples from obtaining marriage licenses, he stood to benefit directly from his decision.

“We know of no reason to believe … that Judge Walker would have any personal interest in the outcome of litigation over, say, the constitutionality of the military’s ‘Don’t Ask, Don’t Tell’ policy,” wrote the pro-Proposition 8 attorneys. “Nor would there be any issue with a gay or lesbian judge hearing this case so long as a reasonable person, knowing all of the relevant facts and circumstances, would not have reason to believe that the judge has a current personal interest in marrying if Plaintiffs prevailed.”

But “particular facts and circumstances” in the Proposition 8 case, they say, “give rise to such a reasonable concern….”

Those facts and circumstances, they argue, include “Judge Walker’s ten-year same-sex relationship, his refusal to disclose both his relationship and whether he and his partner have any interest in marriage, his findings concerning the manifold benefits of marriage for ‘committed, long-term same-sex relationships,’ and the extraordinary rulings and course of proceedings in this case….”

The attorneys offered the Don’t Ask, Don’t Tell contrast in their reply brief to arguments submitted by the Ted Olson-David Boies legal team which is opposing a Yes on 8 request to vacate Walker’s August 2010 against Proposition 8.

A Yes on 8 appeal on the merits of Walker’s decision in Perry v. Brown (formerly Perry v. Schwarzenegger) is still pending before a 9th Circuit U.S. Court of Appeals panel. But before the panel rules, it is awaiting a decision from the California Supreme Court on whether Yes on 8 has any legal authority to appeal the decision –a decision which state officials have declined to appeal.

So the Yes on 8 motion to vacate Walker’s ruling is seen by many legal observers as a long shot back-up plan to save Proposition 8 if the California court rules Yes on 8 does not having standing to appeal the decision.

After retiring from the bench in February, Walker disclosed to a small group of reporters in April that he has been in a relationship with a man for the past 10 years. Yes on 8 attorneys say that relationship constituted a significant conflict of interest, and one that should have prompted Walker to either recuse himself from the case or “disclose on the record all of the relevant facts concerning his possible direct and substantial personal interest in the outcome of the case while he presided over it.”

The Olson-Boies team argues that newspaper reports after the trial discussing the “open secret” of Walker’s sexual orientation undermine Yes on 8 attorneys’ claim that they were unaware that Walker was gay.

“But it is settled,” said the Yes on 8 reply brief, “that litigants are entitled to presume that the judge will disclose any and all information bearing on his fitness to sit in a case, and litigants therefore do not have any duty to investigate rumors and speculation concerning the judge’s personal life to unearth evidence of possible bias.”

U.S. District Court Chief Judge James Ware, who took over Walker’s cases after Walker retired last February, has scheduled a hearing on the matter for June 13. Ware ordered Judge Walker to appear in court that day regarding a Yes on 8 motion to sequester Walker’s videotapes of the three-week-long trial last year. Attorneys for Walker turned the tapes over to the court earlier this month and asked that Walker be excused from making an appearance June 13. They also contended that the videotapes are part of Walker’s property and should be returned to him.

Ware has yet to respond.