Judges Hear Arguments on Prop 8 Trial Video, Judge Vaughn Walker's Same-Sex Relationship

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

• Part 1: Hearing on whether to release the Prop 8 trial video
• Part 2: Hearing on whether Judge Vaughn Walker should have recused himself because of his long-term same-sex relationship

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.