To recap: the trial judge in California's same-sex marriage case, Vaughn Walker, disclosed after the trial was over that he is a gay man in a long-term relationship. (Judge Walker's sexual orientation was a surprise to no one in our local legal community, but he had never made it a matter of public record until after trial.)
Then, on appeal, we learned that one of the three appellate judges assigned to the panel, Stephen Reinhardt, is married to Ramona Ripston, who was Executive Director of a local ACLU office that was involved, to some (hotly disputed) degree, in the planning stages of what became the litigation.
Over at National Review Online, Ed Whelan once again addresses the recual issues in three posts and he has filed an amicus brief on the issue. A round-up of Whelan's views is here. His arguments are substantial.
In the other corner . . . . Our own Steve Gillers, joined by the Hon. Judith Kaye (ret.), Charles Geyh, James Alfini, and Mark Harrison, has filed an amicus brief taking the opposite view of the issues. Their brief, which is likewise substantial, is here:
I don't have a deeply informed view but can say that when Judge Reinhardt declared his reasons for not recusing himself, he spent a lot of time thrashing a strawman argument (i.e., that the argument for his recusal rests upon the notion that the personal views of a judge's spouse are imputed to the judge). I've yet to see anyone argue that simplistically. It's fair to base a recusal motion upon his spouse's involvement (vel non) in the litigation itself.
The amicus brief also spends time rejecting the strawman (see pages 30-32) before briefly turning to the more substantial argument (i.e., that it was the spouse's participation in the matter that could be problematic) at pages 32-35.