Update Friday, Dec 9: You can listen to the complete audio archive of yesterday’s hearing below:

Also, here’s Scott Shafer’s report from this morning’s California Report, where you’ll hear some of the highlights:

Yesterday’s post
Today a 9th Circuit Court panel heard oral arguments on two ancillary issues in the long-running legal battle to decide the fate of Proposition 8, California’s voter-approved ban on same-sex marriage: Whether to release the video from the Proposition 8 trial, in which Judge Vaughn Walker ruled that Prop 8 was unconstitutional; and whether Walker had a conflict of interest because he was a gay man in a long-term relationship.

Update 7:25 p.m.

Scott Shafer reports:

The 9th Circuit Court of Appeals will decide whether the federal judge who struck down California’s ban on same sex marriage last year should have disclosed his long-term relationship with another man.

Judicial ethics and rules of disclosure require judges to reveal whether they have a personal interest in the outcome of a case before them. Supporters of Prop. 8 argue for that reason Judge Vaughn Walker should have disclosed he was in a long term relationship with another man — and whether he ever intended to marry him.

Charles Cooper, an attorney for Protect Marriage dot com, told an Appeals Court panel Thursday that a reasonable person could conclude that Judge Walker had a conflict of interest. But several judges questioned that notion.

“A married judge would never be able to hear a divorce?” asked Judge Michael Hawkins.

Arguing for opponents of Prop. 8, attorney David Boies said the disclosure standard promoted by the other side would require any minority judge to reveal whether he or she might take advantage of a pro-civil rights ruling.

Besides the issue of disclosure, the panel took up another question — whether the Prop. 8 trial tapes be unsealed and made public.

Both of these issues will likely be settled before this same panel rules on the fundamental question — whether Prop. 8 violates the U.S. Constitution.

Update: 5:00 p.m.

The court has adjourned for the day. Scott Shafer will file a report later this evening. Check back later tonight for a blog post, and tune in to tomorrow’s California Report to hear his report on the proceedings.

Replay Scott Shafer’s live tweets from the courtroom by clicking below:


For background, Scott Shafer explains what was at stake today:

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 central 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.

Here you can watch the video clip of the trial, used by Walker in a legal seminar, which prompted the battle over releasing the video.

Judges Hear Arguments on Prop 8 Trial Video, Judge Vaughn Walker’s Same-Sex Relationship 21 March,2013Jon Brooks

  • MarkRSF

    It will be interesting to see how our the court decides on these matters. Whether they and our country are in fact supporting LGBT rights as human rights as Secretary Clinton announced to the world a few days ago. Let’s hope she was right.

  • Mark

    I cant find audio !!!! HELP

    • Just click the “Play” button on the “Live365” module above. Unfortunately the module is currently only available in Flash form, so it will not work on mobile or tablet devices.

      Please note that we’ve hit our concurrent listener limit, so it may not be possible for additional listeners to access the stream. We’re working to get the limit increased. Thanks for your patience!

  • Really great public service by Scott Shafer and KQED.  Thanks!

  • Dianasc2440

    The yes on Prop 8 side is going to win.  Marriage is between a man and a woman.  The Yes on Prop 8 side can prove that you cannot marry an AKA!

    • Why do you think they are going to win?

    • Tony

      The Prop 8 side is going to lose and you know it. All they have is prejudice and lies; that is their entire case. 

      Prop 8 will be struck down because discrimination can never be justified, especially with only petty prejudice and nonsense.

    • Dianasc2440isanidiot

      Bullshit. They don’t stand a chance.

    • Jurapilis

      California Constitution Article 1 Sec 7.5: Only a marriage between a man and a woman is valid in the State of California.
      It’s not unconstitutional. It IS the constitution.

      • Kirkclinn

        Except for the fact that were talking about Federal Court and the US Constitution does NOT say that

  • Callen

    Audio lost!

    • Thanks for your note. Internet coverage at the courthouse is spotty, so there may be periods when the audio is intermittently unavailable. In addition, our live streaming partner, Live365, is working to add the ability for additional concurrent listeners to hear the proceedings, since we’ve hit our limit.

      Thanks for your patience!

      Eric Westby
      Senior Producer
      KQED News

      • Guest

        Yes, very long periods…

      • Hunterpastare

        How could you not have anticipated this problem and taken appropriate steps so that coverage would be consistent, given the public interest in the case?

        • Thanks for your comment — I share your frustration. The reality is that we were only given a few hours’ notice that we would be permitted to live stream the hearing. We were thus unable to use our full streaming infrastructure, which is suited to streaming audio from our studio, not from the field.

          Do note that the full audio of the hearing should be available online tomorrow.

      • Straightgrandmother

        how many connections did you have. It would be a fun fact to know. And thank you

  • Guest

    I am extremely disappointed.  The audio feed constantly breaks down.  What kind of service is Live 365 anyway?  We rely on KQED for accurate information.  If you were not capable of providing an audio feed, then you shouldn’t have put this on your page.  

    • Thanks for your input. While we knew we couldn’t guarantee we would have a 100% consistent Internet connection at the courthouse, our senior news editor determined that it would still be worthwhile to try to stream the proceedings when we received permission to do so.

      • Kevin

        You should make sure KRON knows about the interest in this case and your server overload.  Maybe that would have affected their decision not to broadcast.

      • Guest

        Will you be able to post the full audio recording online after the fact?

        • Yes, we are recording the hearing and will post it online once Scott Shafer is back in the newsroom. In the meantime, note that he is live-tweeting in the Cover It Live module above.

          • Guest


          • Guest

            So, I take it Mr. Shafer has returned.  Any news on that recording?

      • Anonymous

        Huge disappointment. If you have lawyers filing motions arguing that you should be able to broadcast, PLEASE BE ABLE TO BROADCAST!

    • Rusty

      i agree..stay home if you cant do the job.

    • Juana Serrano

      Perhaps something is wrong with your browser or your connection? I have been listening since the beginning of the hearing without any issues.

  • Msbussee

    Any way to provide updates?

    • Absolutely: our reporter Scott Shafer is live tweeting the trial in the Twitter/Cover It Live module above. While the live audio is still giving us grief, that module is working like a champ!

  • GayMormon

    GET IT BACK ONLINE!! The Whole World is Listening!! I am listening from Salt Lake City, UT!!

    • We’re trying to find an alternate Internet connection at the courthouse. Thanks for your support, and we hope you’ll bear with us!

  • Rusty

    and what kind of tweet update are we getting from the guy thats there?? ill go to NOMs website n read the feed.

  • Sad state when our Federal Courthouses aren’t equipped with adequate wifi.  More of our crumbling infrastructure.

  • I am very disappointed.  

  • Guest

    Now we haven’t even had a tweet for 15 minutes! What is going on??

  • Randy

    There seem to have been two problems with the audio:
    1. Loss of internet access at the court.
    2. Inability (or unwillingness) of Live365 to serve the number of listeners.

    Problem #1 should have been foreseen by media, and dealt with ahead of time.
    Problem #2 should have been avoided by choosing a streaming service and technology than can scale appropriately.  It’s clear Live365 is not ready for this sort of application.

  • StonewallYDems

    We will be doing tweets too! Follow: http://twitter.com/ruizari or http://twitter.com/stonewallydems

  • TryingToStayCurrent

    It’s the YES on 8 site but more updates are pouring in

  • lj

    i am listening to it right now

  • lj

    Should a female judge who may want to have a child recuse herself from a child abuse or abortion case?  Should her gay or straight partner who is involved with her and feels the opposite be reason to rule the judge biased?

  • Danny – Austin, TX

    No, this wasn’t the most optimal set up, but go easy on KQED.  It is not always easy to stream as you would think.  I’m just as disappointed as are many others on here.  At least I was able to read the live tweets and listen to some of the audio.  I searched on CSPAN expecting to find live video or audio, but found nothing.  I’m in Austin, Texas and am glad that I was able to have some live news here.  Thanks, KQED.  Thanks Eric W. for acknowledging people’s concerns on here, too.  I’m sure there will be more opportunities to improve and this can be a lesson learned.  People are watching & listening…globally…and this sort of live feed is important.

  • Rusty

    i expect censoring of comments from folks like NOM. but we should NOT be doing the same. SHAME on you!

    • Rusty,

      I’m not sure where you got the mistaken idea that KQED censors the comments on our site, but you are incorrect. Perhaps your comment simply took longer than expected to post, because this thread is very popular?

      Eric Westby
      KQED News

  • info

    Some malicious right winger intentionally reposted a Huff Post story on Facebook saying that Prop 8 had been overturned, which spread quickly. (It was a story from last year about the original Walker decision)  They took advantage of the fact that archived stories on Huff Post still appear with the current date at the top of the page, so it looked like it was a headline from today’s hearing–particularly on mobile devices where the original story date appears in tiny print under the photo.  Really a disgusting thing to do.  We will eventually prevail in spite of these dirty tricks.

  • Kerthialfad

    We’re not talking about Proposition 8 at this point.  We’re talking about the California State Constitution.  If you have any doubts, read Article 1, Section 7.5.

  • Kathryn Howie

    Do you have a complete recording done at the court house ?
    – if so are you going to post it as a podcast online,
      and when will it be up?
    I was trying to get the live stream from SF court in Scotland
     but the server kept overloading and crashing so missed most of it.

    • Jon Brooks

      Yes we will post it tomorrow morning.

    • I recommend you watch News Fix or our Prop. 8 blog for the complete audio recording, as I haven’t been informed when precisely it will be available.

  • Debrosaad

    we must have justice be justice. my fight started abt my lesbian daughter being hated because she would not tell a stranger if she was a man or woman. google debro saad and star harris vs 7eleven. corporate corruption and big money lead to bad decisions being made and the public being left out of the truth as with our story. i’m very ill but shall fight until my demise, currently in legal abuse syndrome sufferring from ptsd both of us and we shall never be the same. she is a great daughter and friend who did not deserve this hate brought on her. God bless this world. maybe one day hate will not be a part of our lives, maybe one day we shall always be free….

Sponsored by

Become a KQED sponsor