Prop 8 Watch: Judge:1; Video Tapes:0

The good news?

The three federal appellate justices don’t sound to keen on overturning Judge Vaughn Walker’s ruling declaring Proposition 8 unconstitutional, even if he is gay.

The bad news?

We probably won’t be seeing those prop 8 trial tapes anytime soon.

Circuit Judge Stephen Reinhardt of Los Angeles, Circuit Judge N. Randy Smith of Pocatello and Senior Circuit Judge Michael Daly Hawkins of Phoenix made up the panel for the U.S. 9th Circuit Court of Appeals. The three heard two hours of arguments on both issues from both sides yesterday.

One of the highlights of the debate came when Judge Hawkins asked Charles Cooper, an attorney for prop 8 supporters if a “married judge could never hear a divorce case?”

According to the The Bay Area Reporter,“Cooper replied that he didn’t “see the difficulty with that.”

Judge Randy Smith, a very familiar name in Idaho,”repeatedly questioned Cooper what evidence there is to suggest that Walker wanted to get married.”

“Do we have anything in this record to show that is what he desired to do? You all talk about ‘if.’ But I don’t find anything to show he did,” said Smith.

“Smith said he was inclined to agree with current District Court Judge James Ware, who reviewed the matter and found no reason why Walker should not have heard the case,” reports the bay area newspaper.

“David Boies, an attorney for the plaintiff couples, argued that the only reason Walker would need to recuse himself was if he had a personal relationship to anyone involved in the case. Whether he wanted to marry or not is of no concern, said Boies.”

Meanwhile, the infamous tapes are likely to remained sealed.

The Bay Area Reporter reports,”Backers of the anti-gay ban have argued that allowing the public to see the taped trial would result in intimidation and harassment of their witnesses. And they also stressed that Walker had said that “the potential for broadcast had been eliminated” when he entered the tapes into the trial record.”

“Because of the judge’s assertions no one would see the tapes, the lawyers for Prop 8’s backers told the appellate justices they saw no reason not to believe Walker.”

“It was an argument that seemed to strike a chord with the federal judges,” the newspaper reports.

The justices are expected to make a ruling on both matters early next year.

In a post-hearing commentary for Prop 8 Trial Tracker, Shannon Minter, Legal Director for the National Center for Lesbian Rights and Christopher Stoll, a Senior Staff Attorney for the National Center for Lesbian Rights write,”The panel seemed troubled by the argument that Judge Walker assured the Prop 8 proponents that the trial video would not be made public.  San Francisco Chief Deputy Attorney General Therese Stewart responded to that argument forcefully, noting that Judge Walker promised only that the video would not be broadcast during the trial — not that it would be sealed for all time.  Stewart (as usual) was powerful, but the judges did not seem mollified and continued to voice concerns that the Prop 8 proponents may not have had fair notice that the video might someday become public.  It will be deeply disappointing — and a terrible loss to history and to the transparence of the judicial process — if the Ninth Circuit keeps the video under seal.“

One the issue of Judge Walker’s Sexual Orientation the pair write,” Appearing for the plaintiffs, David Boies demolished the proponents’ attempts to question Judge Walker’s fairness, likening them to discredited arguments used to attack female, African American, and Catholic judges in the past.  On the other side, Charles Cooper was unusually dramatic in his rebuttal, claiming that it would be “a dark day for American jurisprudence” if the court allows Judge Walker’s ruling to stand.  Judge Reinhart responded humorously—perhaps signaling again that the court was not swayed by attempts to cast doubt on Judge Walker’s integrity.”

One other interesting note from Minter and Stoll, “The court has indicated that it will not hear any further arguments before issuing its ruling on the main issue in the underlying case — which is whether to uphold Judge Walker’s ruling that Prop 8 violates the federal Constitution.   The court may rule first on the two related issues it heard today, or it may wait to issue all three decisions on the same day.”

Expect to see a ruling in January or February. Once the ruling has been issued we can expect to see a petition  from the loosing party filed with the Supreme Court shortly thereafter.

Read Minter and Toll’s full commentary HERE.