It’s been exactly a year since a panel of 9th Circuit Court judges heard oral arguments on an appeal of Judge Vaughn Walker’s 2010 decision striking down Prop. 8 for violating the U.S. Constitution. No decision has been rendered on that appeal, and none is likely soon.
But Thursday that same panel will hear two somewhat ancillary issues:
1. An appeal of a District court order to release the Prop. 8 trial tapes. Plaintiff’s attorney Theodore Olson will argue the case for releasing the digital videos. Attorney Charles Cooper will speak on behalf of overturning the lower court’s decision and keeping the tapes sealed.
2. An appeal of a decision rejecting efforts to have Judge Walker’s decision vacated because he had a conflict of interest as a gay man in a long term relationship. Mr. Cooper will argue for Prop. 8 proponents, while David Boies will present the oral arguments on behalf of the lower court decision striking down the motion to vacate.
Both decisions were made in the past year by federal Judge James Ware, Chief Judge of the Northern District of California. Regarding the tapes, Judge Ware wrote that unsealing and releasing them to the public was in the public interest and necessary to maintain transparency in a case of such fundamental importance. His decision is supported by a coalition of media organizations, that includes Fox News, the NY Times and KQED among others. An attorney representing that coalition will participate in Thursday’s oral arguments.
In strongly rejecting the motion to vacate, Judge Ware said that were Judge Walker required to recuse himself under federal statutes, all minority judges would have to recuse themselves from any case involving civil rights, something he said Congress could not have intended in writing the recusal statute.
Neither of these issues go to the cental legal merits of the constitutionality of Prop. 8. That is especially true in the video tapes question.
However, the oral arguments regarding Judge Walker’s obligation to recuse himself because of his status as a gay man in a same sex relationship may reveal more about where the panel is heading.
How forcefully will the panel of judges suggest that gay and lesbian rights are of interest to all American judges who care about a society with equality under the law, not just LGBT judges? Will they draw parallels with civil rights cases and minority judges, an indication they see gay rights on par with issues like interracial marriage, segregation and racial discrimination?
It may shed some light on where the panel is ultimately heading on the issue that is central to the appeal: Whether to uphold Judge Walker’s decision striking down Prop. 8. That decision will likely come next year, but not before the panel also rules on whether Prop. 8 proponents have legal standing to file the appeal in the first case.
The wheels of justice do grind slowly!
Below you can watch a video clip of the trial used by Walker in a University of Arizona legal seminar on the issue of cameras in the courtroom: