Marriage discrimination proponents argued in federal court in California yesterday that Judge Vaughn Walker’s ruling that Proposition 8 violated the rights of gays ought to be thrown out because Walker is gay and stood to benefit from his own decision.

Almost no one expects them to get anywhere with the argument. California Chief Justice James Ware is expected to deny the motion in the next few days.

(Editor's Update, 8 p.m. : As expected, Ware refused to disqualify Walker.)

“This is a desperate 'Hail Mary' pass because they think they’re going to lose," says Theodore Boutrous, Jr., an attorney for the same-sex couples who challenged Proposition 8, the ballot initiative by which California voters at least temporarily halted same-sex marriage in the state. “Courts in race cases, gender cases, have rejected these arguments where litigants try to bounce a judge off a case when they’re unhappy with the result because the judge is from a minority group.”

Should the decision go the other way, we wonder who is going to stand up and tell U.S. Supreme Court Justices Ginsburg, Sotomayer and Kagan that they need to recuse themselves from sexual discrimination cases.