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Attorneys David Boies (left) and Theodore Olson.
The final arguments in the Proposition 8 case before the Ninth Circuit Court of Appeals were heard on December 8, 2011, when oral arguments were presented on two questions: whether the videos of the district court trial should be released and whether the decision by Judge Vaughn Walker should be vacated because he is gay and in a long-term homosexual relationship. The case, which concerns the constitutionality of California's Proposition 8, which ended same-sex marriage in the state, may ultimately wind up at the Supreme Court of the United States.
An hour was devoted to each question.
In the first hour, Theodore Olson argued on behalf of the American Foundation for Equal Rights (AFER) that the public has a First Amendment right to see video footage of the historic Proposition 8 trial.
The proponents of Proposition 8 are appealing a District Court ruling that the video tapes should be released on the grounds that the American people have a vested interest in transparent court proceedings.
The judges seemed unimpressed by the proponents' argument that the video tapes need to remain sealed because of the fear that their witnesses will be intimidated or even subjected to violence.
The judges, however, seemed sympathetic to the other argument of the proponents, that the video tapes should remain sealed because the participants were promised that they would not be broadcast and were made only for use at the trial.
Therese Stewart, who appeared on behalf of the City and County of San Francisco, made the point that Judge Walker promised only that the videotape would not be broadcast while the trial was proceeding--not that it would be sealed for all time, while Theodore Olson argued that the video tapes were similar to the transcript of the trial, only better.
Despite these strong arguments, the judges continued to raise concerns that the Prop 8 proponents did not have fair notice that the videotape might eventually be made public.
In the second hour, David Boies, on behalf of AFER, and Theresa Stewart addressed the proponents' motion to vacate. The anti-marriage forces are appealing a District Court ruling that denied the motion as being without merit.
The judges seemed skeptical of the arguments made by attorney Charles Cooper on behalf of the proponents.
"In May 2009, when Judge Walker read the allegations of the complaint, he knew something the litigants and the public did not know: He knew that he, too, like the plaintiffs, was a gay resident of California who was involved in a long-term, serious relationship with an individual of the same sex," Cooper said. "The litigants did not have any knowledge of these facts, and it appears that Judge Walker made the deliberate decision not to disclose these facts."
Cooper was interrupted by one of the judges, R. Randy Smith, who asked why a gay judge would be any more obligated to divulge his relationship status and views on matrimony than would a married straight judge who opposes same-sex marriage. "So a married judge could never hear a divorce?" Smith asked.
Similarly, Judge Stephen Reinhardt questioned whether, in light of the proponents' argument that allowing same-sex marriage would harm the institution of marriage itself, a heterosexual judge who is married or might conceivably marry could be impartial.
In a spell-binding presentation, Boies attacked Cooper's reasoning and pointed out that judicial ethics rules never have required judges to bow out of civil rights cases because they are members of the minority group whose constitutional rights are at issue.
Cooper's "perverse logic," Boies said, "is that only judges, gay or straight, who have no interest in marrying and the institution of marriage would be the only ones who could hear this case."
Stewart was even more blunt in attacking Cooper's argument, saying that it was evidence of an attempt to impose a double standard on gay judges.
On the basis of the questions asked by the judges, it is pretty safe to predict that they will not vacate the case on the grounds that Judge Walker was unable to be impartial because he is gay and in a long-term relationship.
The arguments on December 8 did not address the question of the merits of the case itself, which was argued a year ago.
It is anticipated that the Ninth Circuit panel will issue a decision (or perhaps three separate decisions) soon.
It is likely that whatever decision issued by the Ninth Circuit, the losing side will appeal further. The case may ultimately be heard by the Supreme Court of the United States.
Here is a video of the argument about releasing the tapes:
Here is a video of the argument about recusing Judge Walker: