BY ARI EZRA WALDMAN
It has literally been and up-and-down relationship for Proposition 8, California's ban on same-sex marriage, and the San Francisco-based Ninth Circuit Court of Appeals. Thursday marked the second time the American Foundation for Equal Rights (AFER) and its legal team, along with the Prop 8 proponents, ProtectMarriage, argued before the appeals court. And, it is hopefully the last.
After Judge Vaughn Walker declared Prop 8 unconstitutional, a three-judge panel consisting of Judges Stephen Reinhardt, Michael Hawkins, and N. Randy Smith heard arguments on the merits of that ruling and on the right of Prop 8 proponents to appeal it in the first place. As we all know, the panel's decision was delayed over a year while we waited for the California Supreme Court to interpret a question of state law. While we are still waiting for the Ninth Circuit's ultimate opinion, Prop 8 came back to Judges Reinhardt, Hawkins, and Smith on Thursday to discuss the release of the trial videotape and the proponents' motion to vacate the lower court's decision.
I have argued here that releasing the videotapes is a tough sell as a matter of law, much more so than the slam dunk victory awaiting AFER, Ted Olson, and David Boies on the issue of vacation. Let's take the easy one first. In short, the Prop 8 proponents' rabidly anti-gay argument that Judge Vaughn Walker's decision should be thrown out because he was, at the time of the Perry trial, in a long-term relationship with another man, and thus could be not be impartial on the issue of same-sex marriage, strikes at the very heart of the independent judiciary. It presumes that judges' personal views necessarily infect their professional conduct, which not only flies in the face of reason, but contradicts a tenet of Anglo-American law since the Norman invasion. It also is blatantly discriminatory: if Judge Walker had to recuse himself from a gay marriage case because he could have possibly wanted to marry a man in the future, would all heterosexuals have to recuse themselves from divorce proceedings? Would all African-Americans have to recuse themselves from civil rights cases? The Prop 8 proponents would either have to say YES and be laughed at, or say NO, and admit that they just hate gays.
Releasing the videotapes -- records created by and kept by Judge Walker for his use in chambers -- is a good idea, but a tough call on the law. My previous argument noted that, for better or for worse, we usually make public a trial transcript, but do not normally televise or release video of trials; therefore, any motion to do so requires special justification. Releasing the videotapes would be transcript plus, so we would need a sufficient reason for tack on the plus. However, attorneys for the various media outlets supporting release have argued that the Prop 8 proponents have to offer specific reasons why the tapes should not be released, suggesting that keeping the tapes under wraps is a special departure from the norm requiring justifications. The policy arguments favoring release are extraordinarily strong, but that does not mean the law is on our side.
The Ninth Circuit is now poised to issue a comprehensive decision addressing the motion to vacate, the videotapes, standing, and, perhaps, even the merits. At least with respect to the first two tertiary issues, the Ninth Circuit is most likely to toss the motion to vacate and deny the motion to release the videotapes. Still, that half-victory will be sweet enough, as the court should also uphold Judge Walker's monumental ruling declaring marriage discrimination unconstitutional.
Continue AFTER THE JUMP for a discussion of what happened at the Ninth Circuit on Thursday, where both sides argued the motion to vacate and the motion to release the videotapes.