The sponsors of California's same-sex marriage ban insist they are not trying to disqualify the federal judge who struck down Proposition 8 because he is gay.
Instead, they argue the judge's decade-long relationship with another man poses a potential conflict because they might want to get hitched themselves.
Experts in judicial ethics said Tuesday that carefully parsed line of reasoning is unlikely to prevail.
They pointed out that while courts have not yet had to wrestle with sexual orientation as grounds for judicial recusal, judges typically have rejected efforts to remove jurists based on personal characteristics such as race, gender, religion or even the contents of their investment portfolios.
"I don't think this judge had any more duty to disclose his sexual orientation than a Christian or Jewish or Muslim judge has a duty to discuss their religion or a heterosexual judge has his duty to discuss their sexual orientation," retired Illinois state Judge Raymond McKoski said.