The latest in the Proposition 8 battle is a filing by supporters which argues that the ruling by Judge Walker should be set aside because he is gay and has a partner.

The logic being that he could have benefited from the ruling by marrying and thus he should not have ruled, or at least should have disclosed his sexuality and relationship status (both from what I understand were well known to most of the legal community).

Now I see this is as a ridiculous argument. By that theory a straight judge should not be able to rule on divorce law or any family law because they could marry and thus want to divorce someday.

But I do think there may be an unintended concession by the request.

The opponents to marriage equality have always argued that domestic partnerships were just as good as marriage because they both had the same benefits.

But now they are arguing that the judge would ‘benefit’ from the ruling and thus had a conflict of interest.

But if this is true then they are conceding there is some benefit to marriage that is not present in domestic partnerships.

Otherwise the judge could not have ‘benefited’ from the ruling.

And if there is a benefit to marriage that does not exist in domestic partnerships then the argument made by supporters of Proposition 8 have a big problem under California law, since it does not allow inequal treatment of two groups.