The voter-approved ban's backers say Chief U.S. District Judge Vaughn Walker should have removed himself from the case because his impartiality could "reasonably" be questioned, their lawyer, Andy Pugno, told The Associated Press.
Lawyers plan to file a motion making the argument that Walker's historic ruling should be vacated in U.S. District Court in San Francisco on Monday.
Walker, a 67-year-old Republican appointee, declared Proposition 8 to be an unconstitutional violation of gay Californian's civil rights last summer. He retired from the bench at the end of February.
Rumors that the judge was gay circulated during the 13-day trial that preceded his decision and after he handed down his ruling.
Lawyers for the coalition of religious and conservative groups that put Proposition 8 on the November 2008 ballot, however, did not raise his sexual orientation as a legal issue.
Pugno said that has now changed because Walker publicly addressed the rumors this month when he told a group of courthouse reporters about his 10-year relationship.
Walker said at the time that he did not consider his personal life to be a reason for recusal, noting that sexual orientation is no more a reason for a judge to be disqualified than is race or gender.
In their anticipated filing, the Proposition 8 lawyers plan to argue that Walker should have removed himself not because he is gay, but because his relationship status made him too similar to the same-sex couples who sued in his for the right to marry.
The 9th U.S. Circuit Court of Appeals already is reviewing Walker's ruling on appeal from the ban's sponsors. Their previous filings have attacked the judge's legal reasoning.
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